IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 29TH MARCH 2011 / 8TH CHAITHRA 1933 MACA.No. 1709 of 2010 -------------------------------- OPMV.751/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD .................... APPELLANT/1ST RESPONDENT: E.SRIDHARAN, S/O. M.KRISHNAN NAIR, KUNDOOCHI VEEDU, P.O.VATTAMTHITTA, BEDAKAM VILLAGE, KASARAGOD-671 542. BY ADV. SRI.D.KRISHNA PRASAD SMT.O.K.SANTHA SMT.P.L.MARY TREASA RESPONDENTS/(PETITIONER & RESPONDENTS 2 AND 3): 1. P.PRASAD, S/O. C.PARAMAN, RESIDING AT NUSRATH NAGAR, BOVIKANAM, P.O.MULIYAR-671 542. 2. RAGHAVAN, S/O. KUTTY, AMAY ROAD, KASARAGOD VILLAGE, P.O.KASARAGOD-671 121. 3. THE MANAGER, NATIONAL INSURANCE CO. LTD., M.G.ROAD, P.O.KASARAGOD-671 121. BY ADV. SRI.RAJAN P.KALIYATH FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.Basheer & P.Q.Barkath Ali, JJ. ---------------------------------------------------- M.A.C.A.No.1709 of 2010 ---------------------------------------------------- Dated this the 29th day of March, 2011 JUDGMENT Basheer, J. When this appeal came up for consideration on an earlier occasion, it was noticed that the appellant had not made the statutory deposit as mandated under Section 173(1) of the Motor Vehicles Act. On a request made by the learned counsel, the case was adjourned, so as to enable the appellant to make the deposit. Thereafter, two more adjournments were granted to the appellant as requested. 2. Today, when the case is taken up for consideration, learned counsel submits that the appellant is not in a position to make the deposit. However, he invites our attention to a decision rendered by a Division Bench of this Court in Abdul Rahiman v. Rajan (2004 (2) KLT 1113), which, according to the learned counsel, governs the field. It is pointed out by the learned counsel that in this decision, it has been held that the stipulation contained in the first proviso to Section 173(1) of the Motor Vehicles Act will not come into play if the Insurance Company is directed to satisfy the award initially, and MACA 1709/10 2 recover the amount from the owner and driver later. Learned counsel submits that in the case on hand, an identical situation has arisen and therefore, the appellant need not make the pre deposit. 3. Appellant is the driver of the lorry which was involved in the accident. He has come up in appeal challenging the finding entered by the Tribunal that the licence possessed by him was not valid at the time of the accident. According to the appellant, he had made an application for renewal of the licence and therefore, this aspect ought to have been kept in view by the Tribunal while deciding the question of validity of the licence. 4. We have carefully perused the decision in Abdul Rahiman's case (supra). In our view, the proviso to Section 173 (1) of the Motor Vehicles Act gives no room for any ambiguity or doubt. “Section 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 percent of the amount so awarded, whichever is less, in the manner directed by the High Court.” (emphasis supplied) MACA 1709/10 3 First proviso to sub-section (1) makes it unambiguously clear that no appeal can be preferred by a person who is required to pay any amount in terms of the award unless he has deposited with the appellate court twenty five thousand rupees or 50% of the amount so awarded, whichever is less, in the manner directed by the High Court. 5. According to the appellant, since the amount awarded by the Tribunal in favour of the claimant has already been deposited by the Insurance Company (of course with liberty to the Company to recover it from the owner and driver of the offending vehicle), he is well within his right to institute this appeal without making the pre deposit. 6. But, it has to be remembered that the appellant does not have a case that no liability has been fastened on him by the award that is impugned in this appeal. The appellant is obviously aggrieved by the award passed by the Tribunal, as otherwise, he would not have come up in appeal. It is true that the Tribunal has directed the Insurance Company to deposit the award amount before the Tribunal so as to ensure that the claimant gets the fruits of the decree passed in his favour without any delay or hassle. Undoubtedly, it cannot be said that the appellant has been MACA 1709/10 4 exonerated from the liability to pay the compensation. So long as the ultimate liability hangs over the head of the appellant, he is bound to satisfy the award, though there is no imminent threat of execution against him. Any how, by no stretch of imagination, it can be said that the appellant “is not required to pay any amount in terms of the award” unless and until he succeeds in the appeal. But, if his appeal is to be entertained, he has to necessarily comply with the statutory mandate. 7. As has been noticed already, the Tribunal found that the appellant did not possess a valid driving licence at the time of the accident and therefore, the Insurance Company has been exonerated from the liability, though it has been directed to pay the compensation to the claimant and recover it later from the owner and the appellant/driver. Thus, even if the insurer has complied with the direction issued by the Tribunal to deposit the award amount, the liability fastened on the appellant would still subsist. 8. In Trilochan Singh v. Kanta Devi and Others (2001 (1) Transport and Accident Cases 661), the Apex Court had occasion to consider the appeal preferred by the owner of an offending vehicle which was involved in an accident. Appellant had MACA 1709/10 5 challenged the order passed by the High Court dismissing his appeal because of his failure to make the statutory deposit of `.25,000/-. In fact the Insurer had paid the full amount covered under the award to the claimants and the only question that remained was regarding right of recovery. The Apex Court, obviously, did not accept the contention raised by the appellant; but permitted him to prosecute his appeal before the High Court on condition that he deposited an amount of `.50,000/- in addition to the amount of `.10,000/-, which he had already deposited in the High Court, only in view of the fact that he was a retired military officer. A perusal of the above judgment will show that the Apex Court did not show any indulgence to the appellant in that case in the matter of statutory pre-deposit. Therefore, the above decision will settle the issue against the appellant in this case. 9. In Rajasthan State Road Transport Corporation v. Santosh and others (1995 ACJ 721), the Rajasthan High Court has taken the view that under Section 173 of the Motor Vehicles Act, the appellate court has no discretion to reduce or enhance the amount of deposit as mandated in the Statute. 10. In Abdul Rahiman's case (supra), it has been held that the owner and driver would be liable to make the pre deposit in MACA 1709/10 6 their appeal only if the Insurance Company has been totally exonerated from the liability due to absence of insurance coverage. It has been further held that first proviso to Section 173 (1) will not be attracted in the case of an appeal preferred by the owner and driver of the offending vehicle, if the Insurance Company is directed to satisfy the award. Evidently, the decision of the Apex Court in Trilochan Singh's case (supra) was not brought to the notice of this Court while deciding Abdul Rahiman's case (supra). 11. Keeping in view the unambiguous provisions contained in Section 173 of the Motor Vehicles Act, we have no hesitation to hold that the appellant is liable to make the pre-deposit as mandated by the Statute. Since the appellant has failed to make the deposit in spite of three or four opportunities given to him, the appeal is not liable to be entertained. Therefore, the appeal is rejected. (A.K.Basheer, Judge) (P.Q.Barkath Ali, Judge) tkv