Report No. 128
3.21. The Committee recommended rate of court fee on writ petitions under Article 226 of the Constitution as under:-
Undoubtedly the Committee was fully justified in recommending no court fee on a petition for a writ of habeas corpus. And the Law Commission accords its full support to that recommending.
3.22. But the Law Commission finds it difficult to appreciate a levy of court fee of Rs. 100 only when a petition complaining of denial of fundamental rights is filed. Amongst the fundamental rights, the citizen has a right to practice any profession or to carry on any occupation, trade or business.1 People who are in any profession or are carrying on business would be able to pay highest court fees for vindication of their fundamental right, especially the right to carry on profession.
Who generally invokes this right may be illustrated by reference to some cases? Excel wear, a registered partnership firm, had set up a factory at Bombay where it manufactured garments for export employing about 400 workmen. The firm served a notice on the Government of Maharashtra for its approval of the intended closure of the undertaking in accordance with section 25-0(1) of the Industrial Disputes Act, 1947.
The State Government declined to accord the approval which led to the filing of the writ petition in the Supreme Court of India. Should such a concern involved in export business and likely to render 400 workmen jobless by its unilateral action be permitted to file a writ petition on a court fee stamp of Rs. 50 only 'which now the Committee seeks to revise to Rs. 100?2 Similarly, Lohia Machines Ltd.,3 a very flourishing concern, filed a writ petition in the Supreme Court, probably paying the same amount of court fee, questioning the validity of rule 19A of the Income-tax Rules, 1962 which, in the event of success, would have benefited the company to the tune of crores of rupees. And yet the court fee paid was the infinitesimally email amount of Rs. 50 which, under its recommendation could now be raised to Rs. 100.
The Law Commission is of the opinion that it is too much of an indulgence to litigants who can afford to pay adequately for the service they obtain from court. When the Supreme Court of India book the view that a statutory corporation or a company registered under the Companies Act, 1956 is not a citizen and, therefore, cannot seek to enforce fundamental right granted to the citizen by filing a writ petition, a device was resorted to make the company/corporation a petitioner along with one of its directors. And this device has succeeded. And the giant corporation pays negligible fees.4 Therefore, the Law Commission would recommend that when a company/corporation/statutory corporation/a body composed of individuals but excluding trade unions seek to enforce any fundamental right, the court fee payable by it must not be less than Rs. 1,000.
1. Article 19(1)(g), The Constitution of India.
2. Excel Wear v. Union of India, (1978) 4 SCC 224.
3. Lohia Machines Ltd. v. Union of India, (1985) 2 SCC 197.
4. Delhi Cloth and General Mills v. Union of India, (1983) 3 SCR 438.
3.23. Similarly, where a tax demand is raised and questioned by way of a reference under the Income-tax Act or by way of a writ petition, the court fee leviable shall be not less than 10 per cent. of the value of the demand involved in the dispute. The approach of the Law Commission in this behalf is not to treat unequals as equals in the matter of court fees. A classification to be valid must be founded on intelligible differentia and it must have nexus with the objects sought to be achieved.1 Those who use the court service can be divided into two classes namely:
(i) those who have cushion and who can afford to pay and enjoy the service of civil justice administration, can be classified separately from;
(ii) those who can ill-afford to pay for the service. This classification is based on intelligible differentia and it has a real nexus to the objects sought to be achieved namely, removal of economic barriers from access to justice.
In the approach of the Law Commission, there is no violation, threatened or apprehended, of Article 14 of the Constitution. The differential treatment in the matter of payment of court fees between corporations, companies and bodies of individuals and taxpayers on one hand others on the other would be justified on the theory of classification. Such a view was also expressed before the Committee by the Advocates-General of Kerala and West Bengal who asserted that there was no justification for extending concessions in the matter of court fees to the companies. They advocated differential rates of court fees for payment by individuals and corporate bodies/companies. They were of the view that there is no constitutional bar in so doing.2
1. Report of the Committee of Law Ministers on Rationalisation of Court fee, para. 8.15, p. 16.
2. Special Court Bill (in re:), AIR 1978 SC 478.
3.24. The Committee recommended that the court fee on first as well as second appeals should be 50 per cent. of the fee leviable on the original suit, whether the appeal is by the plaintiff or the defendant in the original suite.1 Now it is well-settled that appeal is a continuation of a suit. If that principle is applied it is gravely doubted whether any court fees can be levied depending upon the value of the subject-matter in disputes at different stages of the same litigation. However, since the hoary past, court fee is leviable on the memo of appeal also, it would be a sudden about turn if it is totally abolished. Therefore, subject to exemption clause as hereinabove stated, the Law Commission would concur in the recommendation of the Committee in the matter of court fees leviable at appellate stage.
1. Report of the Committee of Law Ministers on Rationalisation of Court fee, section VII, para. 11, p. 41.
3.25. The Committee also recommended that the question of levy of nominal fee on tort cases may be referred to the Law Commission for its examination and recommendation.1 The maximum litigation for compensation by victims of tort or by dependants in case of death is under the Motor Vehicles Act. Section 92A provides that where the death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the court may be, the owners of the vehicles shall, jointly and severally be liable to pay compensation in respect of such death or disablement in accordance with the provisions of the section. This is styled as no fault liability.
Section 928 makes provision for payment of higher compensation where the death or injury has been suffered on account of the tortious conduct of the person in charge of vehicle and the owner of the vehicle. Section 94 makes it obligatory to insure against third party risks every motor vehicle before being used in a public place. Section 110 empowers the State Government to set up Claims Tribunals where those entitled to claim compensation on account of death or bodily injury by the use of motor vehicles in public place may institute their claims. Almost all the States in India have set up Claims Tribunals and, with ever expanding surface transport, on an average 40,000 persons per year become victims of motor accidents. The petitions claiming compensation are filed in large numbers.
1. Id., para. 34, p. 43.
3.26. When a victim of a motor accident dies on account of the injuries suffered by him in the accident caused by wrongful act, neglect or default, the wife, husband, parent and child, if any, of the person whose death shall have been so caused any, entitled to initiate an action for damages.1 In Indian conditions, generally the bread-winner who is on the move out meets with an accident and if he dies, the family is rendered destitute. The wife would generally be a non-working woman and the children may be minors. The death of the bread-winner would raise the spectre of struggle for survival from the next day.
Now if dependants of the deceased are reduced to the state of destitution and have to initiate an action for damages and if ad valorem court fees are levied on the claim for damages, in large number of cases, either the claimants would have to resort to Order 33, rule 1, of the Code of Civil Procedure or give up the claim. The action for damages by the dependants of the victim of accident has to be viewed as an action for social justice via social security. The principle is of restitution. These are cases which invoke all humanitarian considerations. A levy of ad valorem court fees would be inconsistent with the spirit both of legislation and the overall humanitarian consideration that must inform such litigation.
1. Section 1A, Fatal Accidents Act, 1855.
3.27. The Committee has given in a tabulated form the information received by it from various States about the levy or court fees on petitions by the victims of the motor accident claiming compensation. The lowest is a court fee of Rs. 125 provided for by the State of Punjab and Union territory of Chandigarh, whatever be the quantum of damages claimed. In other States, the levy commences from Rs. 10 for any amount to a fixed fee plus certain percentage on graded scale in different slabs of compensation. The suggestions received by the Committee were, at the one end of the spectrum, total exemption from court fee as recommended by the Government of Andhra Pradesh to, at the other end of the spectrum Rs. 200 for claims between Rs. 15,000 by Government of Madhya Pradesh and on a graded scale by Government of Maharashtra.1
Levy of court fees on petitions claiming compensation filed by the victims of motor accidents have given rise to a very nefarious practice of some lawyers sharing the booty. There are two guiding considerations why there should be levy of no court fee in the initial stage of the petition before a Motor Accident Claims Tribunal, namely, that in most of the cases, the bread winner is either dead or has suffered permanent disability and the income has stopped and the family is rendered destitute. And secondly, if court fee is levied, the investment by legal profession can hardly be avoided.
1. Report of the Committee of Law Ministers on Rationalisation of Court fee, paras. 30.1 and 30.2, pp. 29-31.
3.28. Champerty, if proved, constitutes professional misconduct, and yet to what extent it has corroded the professional ethics may be gauged from a recent case published in the print media, justifying the contemptuous epithet 'ambulance chasers'. One Manibhai Zenabhai of Mahudha, District Nadiad, Gujarat State, met with an accident in 1980 in which he lost his right leg and his wife Manguben received fatal injuries and his son suffered serious injury. Manibhai Zenabhai and his injured son engaged advocate Dilip Patel of Nadiad and instituted a claim for compensation in the Motor Accidents Claims Tribunal, Nadiad. The Tribunal awarded Rs. 59,025 to Manibhai.
The amount was received by his lawyer and credited it in account No. 5646 maintained in the branch of Bank of India at Kathalal. Afterwards, in settling account of cost of litigation and his fees, the lawyer paid only Rs. 3,500 to Manibhai, appropriating an amount of Rs. 55,500 to himself. Claimant Manibhai called upon the lawyer to render account and pay up all the amount deducting only legally payable fees. Failing to get any satisfactory reply, Manibhai filed a suit through his advocate Raojibhai in the Civil Court presided over by Judge Mr. Mankad at Nadiad.1 Victims of accidents become victims of aggrandisement because they are unable to pay court fees for initiating action when on the quantum of damages ad valorem Court fee is levied.
These are two vital considerations why the Law Commission is of the firm opinion that no court fees should be levied except a token amount of Re. 1 on petitions by victims of motor accidents before Motor Accidents Claims Tribunals. Undoubtedly, when the petition ends in an award in favour of the claimant, the contesting respondent should be called upon to pay court fees to the court on the amount awarded. But if the petition is dismissed for any reason, victims or dependents of victims of motor accidents should not be required to pay any court fees.
1. Gujarat Samachar Daily, published from Ahmedabad, dated June 15, 1988, p. 7, Columns 5 & 6.
3.29. Recently, Parliament has enacted The Railway Claims Tribunal Act, 1987. The Act empowers the Central Government to establish a Claims Tribunal, to be known as the Railway Claims Tribunal, to exercise the jurisdiction, powers and authority conferred on it by or under the Act. Section 13 confers on the Claims Tribunal all such jurisdiction, powers and authority as were exercisable before its constitution by any civil court or a Claims Commissioner appointed under the provisions of the Railways Act, amongst others, for compensation for loss, destruction, damage, deterioration or non-delivery of animals or goods entrusted to railway administration for carriage by railway and compensation payable under section 82A of the Railways Act. Section 82A specified liability of railway administration in respect of accidents to trains carrying passengers.
Anyone claiming compensation may make an application to the Claims Tribunal. Sub-section (2) of section 16 provides that ever such application 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. Section 30 which confers power to make rules to carry out the provisions of the Act, inter alia, provides that the rules would proscribe the form of application, the documents and other evidence to be accompanied with such application and fee in respect of filing of such application and fee for the service or execution of processes under sub-section (2) of section 16. An enquiry revealed that the Act came into force in December 1987, but the Rules under the Act have still not been framed.
3.30. Let it not be forgotten that compensation to victims of accidents partakes the character of social justice or relief in case of disablement as contemplated by Article 41 of the Constitution. For such relief to be obtained in the form of social justice, if one is required to pay court fee, in many cases, relief will be unattainable. When the Rules under the Railway Claims Tribunal Act, 1987 are framed, hopefully, the Law Commission would be levied or a token court fee of Re. 1 may be levied.
3.31. At the appeal stage, no court fee shall be levied if the appeal is confined to a claim upto Rs. 10,000. For any amount over Rs. 10,000, a court fees at the rate of 5 percent. of the amount involved in appeal should be levied. Let it be remembered here that since the rationalisation of general insurance, in view of a statutory provision for compulsory insurance for third party risk, in every petition for compensation by victim of motor accident, General Insurance Corporation or one of its subsidiary companies is a party.
If the petition culminates in an award, ordinarily costs are awarded which would include court fees and the General Insurance Corporation of its subsidiary will have to pay the court fees. Therefore, the maximum court fees would come out of the pocket of a public sector under-taking. This is also one of the considerations why a differential treatment is to be accorded to levy of court fees on petitions for compensation by victims of motor accidents.
3.32. Apart from the claim for compensation by the victims of motor accident or, where death has occurred, by the dependants of the deceased, in almost all tort cases, the principle is the principle of damages for civil wrong suffered. There might be a claim for damages for tort of defamation, trespass, assault, battery, wrongful confinement and alike. In this class of cases, the question of any humanitarian principle permeating the litigation does not arise. Therefore, subject to exemption clause, keeping in view the individual, ad valorem court fees should be levied on the claim for damages.
3.33. Subject to the recommendations made herein departing from the recommendations of the Committee, the rest of the recommendations of the Committee are deemed to be endorsed by the Law Commission. The recommendations of the Committee are set out in the Appendix for ready reference.