Madhya Pradesh High Court
New India Insurance Co. Ltd. vs Smt. Rfeeka Sultan And Ors. on 26 September, 2000
Equivalent citations: 2000(4)MPHT288, AIR 2001 MADHYA PRADESH 116, (2001) 1 JAB LJ 1, (2000) 3 MPLJ 561, (2001) 1 TAC 521, (2001) 1 ACJ 648, (2001) 1 CIVLJ 396
Bench: Dipak Misra, A.K. Mishra
ORDER Bhawani Singh, C.J.
1. Whether Insurance Company can challenge quantum of compensation under Section 115 of the Code of Civil Procedure or under Article 227 of the Constitution of India, is the question for determination in this case. It arises in circumstances being narrated hereinafter.
1. Mahmood Ul Hassan (40-45) was employed with M.P. State Road Transport Corporation, earning Rs. 1400/- per month, apart from allowances and other facilities. While he was going towards crossing from Bus Stand on 18-2-1996, truck No. CPD 8250 driven by Dev Kumar rashly and negligently hit him resulting in his death. The matter was reported at Police Station -Hanumanganj and case under Section 306 of the Indian Penal Code filed in the Court after investigation. Autopsy of the dead body of Mahmood Ul Hassan was conducted on 19-2-1986 at Hamidia Hospital. Dinesh Kumar was owner of the truck while the New India Insurance Co. Ltd. was Insurer. The claimants preferred a claim for Rs. Four Lacs, since they were dependant on the deceased. Other side admitted taking place of accident, rest of the allegations were denied and the Insurance Company alleged that it was not responsible for making payment.
2. The Motor Accidents Claims Tribunal (for brevity 'Tribunal') found on evidence recorded in the case that the accident was committed on 18-2-1986 at 9.30 p.m. by Truck No. CPD 8250 driven rashly and negligently by driver and the deceased was not responsible for it. It found that in this accident, deceased suffered serious injuries resulting in his death and that the claimants were entitled to claim compensation. Accordingly, compensation of Rs. 1,60,000/- has been awarded with interest at the rate of 12% per annum from the date of claim till the date of realisation, by award dated 27-3-1998 passed in M.C.C. No. 41/94.
3. New India Insurance Co. Ltd. assailed this award through Civil Revision under Section 115 of the Code of Civil Procedure, alleging that the Tribunal acted illegally and in disregard of provisions of law in allowing the compensation with interest at the rate of 12% per annum holding that the deceased was 40 years old and applied multiplier of 10, instead of holding that the deceased was 53 years old as reflected in the salary certificate and the case admitted multiplier of 6 (six) for determination of compensation nor could interest at the rate of 12% per annum from the date of filing the application for a period of 12 years, be allowed since delay in disposal of case was attributable to the claimants for which the Insurance Company could not be penalised.
4. Initially, Misc. Appeal under Section 173 of the Motor Vehicles Act, 1988, was filed. However, it was converted into revision under Section 115 of the Code of Civil Procedure, with permission of the Court at a later stage, presumably on realisation that appeal at the instance of the Insurer as to quantum of compensation, was not competent. This matter appeared before Brother Dipak Misra, J. In His Lordship's view, the Division Bench decision of this Court in United India Insurance Co. Ltd. v. Ramdas Patil and Ors. [2000(2) M.P.H.T. 278 = AIR 2000 MP 63] required reconsideration by a Larger Bench, since where appeal lies under the Statute, quantum, of compensation cannot be questioned at the instance of Insurance Company having limited defences, the award cannot be assailed in Civil Revision or for that matter in a writ petition under Article 227 of the Constitution of India, while the opinion of the Bench in Ramdas Patil's case (supra) was to the contrary. For coming to the conclusion, the learned Single Judge has taken into consideration number of important judgments, relevant provisions of law in a comprehensive manner. This is how the matter is before the Full Bench for determination of the question put up for consideration by the learned counsel for the parties and quoted in the beginning on the judgment.
5. Looking to the importance of the question, we requested Sarvashri Ravish Agrawal, Senior Counsel, and S.K. Seth, AAG., to assist the Court while Shri Sanjay Agrawal is already assisting the Court; extensive submissions were advanced by both the sides to tackle the issue under consideration.
6. Sarvashri Virendra Verma and Sanjay Agrawal, Advocate, contended that when the Insurance Company cannot question the quantum of compensation, though shocking or arbitrary, it can challenge the award under Section 115 of the Code of Civil Procedure or Article 227 of the Constitution of India, since Tribunal is a Civil Court subordinate to the High Court. With a view to bring home the submissions, the learned counsel placed reliance on United India Insurance Co. Ltd. v. Ramdas Patil and Ors. [2000(2) MPHT 278 = AIR 2000 MP 63].
7. Learned counsel for the respondents vehemently opposed the submission and contended that the Insurance Company cannot challenge the quantum of compensation. In terms of Section 149(2) of the Motor Vehicles Act, 1988, limited defences are available to the Insurance Company; therefore, the Insurance Company cannot challenge the award on other grounds.
Motor Vehicles Act, 1988, provides for complete mechanism with regard to initiation and determination of just compensation in manner provided. Appeal under Section 173 of the Motor Vehicles Act is maintainable on certain grounds and where it is not available to a party, revision under Section 115 of the Code of Civil Procedure and the writ petition under Article 227 of the Constitution of India is not maintainable. It is also contended that extended meaning cannot be given to "aggrieved person" in Section 173 of the Motor Vehicles Act, 1988, to enable a party, more so the Insurance Company, to assail the award on any ground whatsoever. This expression has to be read in the context of other statutory provisions in the Act and it may be a Civil Court subordinate to the High Court, but award can be assailed only on grounds and in circumstances mentioned in the Act. Large number of decisions, for and against the question before us, came to our notice during the hearing of the case. Some such decisions are : Krishan Gopal and Ors. v. Dattatrya (1971 ACJ 312); Bhagwati Devi v. I.S. Goel and Ors. (1983 ACJ 123); Dushyant Kumar and Ors. v. Rajasthan State Transport Corporation and Ors. (1991 ACJ 150); Darshan Singh v. Ghewarchand (1993 ACJ 534); New India Assurance Co. Ltd. v. Ajay and Ors. (1994 ACJ 987); Sarjubai v. Gurudip Singh and Ors. (1994 ACJ 997); Krishna Gopal v. Dattatraya (AIR 1972 MP 125); Revennppa v. Gunderao (AIR 1983 Karnataka 164); Mrs. Noreen R. Srikantaiah v. Dasarath Ramaiah (AIR 1985 Karnataka 208); State of Mysore v. K.L. Subbanna and Ors. (1974 Karnataka 109) and 1997 ACJ 372; Gaya Prasad v. Suresh Kumar [1992 ACJ 200 (MP)]; United India Insurance Co. Ltd. v. Member, Motor Accidents Claims Tribunal, Lakhimpur and Ors. (1993 ACJ 828); State of Haryana v. Darshana Devi (1979 ACJ 205); Barkat Singh v. Hans Raj Pandit (1985 ACJ 318); Omprakash v. Rukmini Devi (AIR 1982 All. 389); Abdul Gaffar Gujree v. Mohammad Phaphoo and Ors. (AIR 1985 J & K 26); Laxminarayan Mishra v. Kailash Narayan Gupta (AIR 1974 Raj. 55); Mittar Singh v. Ashish Kumar and Ors. (1998 ACJ 1200); New India Assurance Co. Ltd. v. Ranjit Ghosh and Anr. (1999 ACJ 159); National Insurance Co. Ltd. v. Vipul and Ors. (1999 ACJ 695); Oriental Insurance Co. Ltd. v. Motor Accidents Claims Tribunal and Ors. (1999 ACJ 1015); Oriental Insurance Company Ltd. v. Chintaman and Ors. (1995 ACJ 225); and New India Assurance Company Ltd. v. Meghnath and Anr., decided by this Court on 8-4-2000 in Civil Revision No. 1600 of 1999, and Chinnama George and Ors. v. N.K. Raju and Anr. [2000 (4) SCC 130].
8. However, before appreciating the rival submissions, it is necessary to quote some of the important provisions of the Motor Vehicles Act, 1988, (for brevity 'Act'). Section 149(2) of the Act, which is relevant for our purposes, reads as under :--
"Section 149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.--
(1) *** *** *** *** (2) No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:--
(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely :--
(i) a condition excluding the use of the vehicle--
(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or
(b) for organised racing and speed testing, or
(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or
(d) without side-car being attached where the vehicle is a motor cycle, or
(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or
(iii) a condition excluding liability for injury cause contributed to by conditions of war, civil war, riot or civil commotion; or
(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was falsely in some material particular."
Section 169 of the Act, which is relevant for our purposes, reads as under :--
"Section 169. Procedure and Powers of Claims Tribunals.-- (1) In holding any inquiry under Section 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit.
(2) The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).
(3) Subject to any rules that may be made in this behalf, the Claims Tribunal may, for the purpose of adjudicating upon any claim for compensation, choose one or more persons possessing special knowledge of any matter relevant to the inquiry to assist it in holding the inquiry."
Section 170 of the Act is as extracted below :
"Section 170. Impleading insurer in certain cases.-- Where in the course of any inquiry, the Claims Tribunal is satisfied that--
(a) there is collusion between the person making the claim and the person against whom the claim is made, or
(b) the person against whom the claim is made, has failed to contest the claim, it may, for reasons to be recorded in writing, direct that the insurer, who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have, without prejudice to the provisions contained in subsection (2) of Section 149, the right to contest the claim on all or any of the ground that are available to the person against whom the claim has been made."
Section 173 of the Act, which is relevant for our purposes, reads as under :--
"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 :
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 be against any award of a Claims Tribunal, if the amount in dispute in the appeal is less than ten thousand rupees."
Section 115 of the Code of Civil Procedure, 1908, which is relevant for our purposes, reads as under :
"Section 115. Revision.-- (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears--
(a) to have exercised a jurisdiction not vested in it by law; or
(b) to have failed to exercise a jurisdiction so vested; or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity;
the High Court may make such order in the case as it thinks fit :
Provided that the High Court shall not, under this section, vary or reverse any order made, or any other deciding an issue, in the course of a suit or other proceedings, except where,--
(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or
(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.
(2) The High Court shall not, under this section, vary or reverse any decree or under against which an appeal lies either to the High Court or to any Court subordinate thereto.
Explanation.-- In this section, the expression 'any case which has been decided' includes any order deciding an issue in the course of a suit or other proceedings."
Article 227 of the Constitution of India, which is relevant for our purposes, reads as under :--
"Article 227 Every High Court shall have superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction.
(2) Without prejudice to the generality of the foregoing provision, the High Court may--
(a) call for returns from such Courts;
(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such Courts; and
(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such Courts.
(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such Courts and to attorneys, advocates and pleaders practising therein :
Provided that any rules made, forms prescribed or tables settled under Clause (2) or Clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.
(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any Court or Tribunal constituted by or under any law relating to Armed Forces."
9. In Krishan Gopal and Ors. v. Dattatrya (1971 ACJ 372), S.B. Sen, J., took the view that the Claims Tribunal constituted under Section 110 of the Act is a Civil Court and a revision petition would lie under Section 115, Civil Procedure Code against an order passed by it in the course of proceedings before it. Even if Section 115, Civil Procedure Code is not strictly applicable, the principles thereof would apply since it is a Tribunal, which decides civil dispute and subordinate to High Court. S.M.N. Raina, J., took contrary view and also said that the only remedy available to a party aggrieved by an order of the Tribunal would be to challenge the order by a petition under Article 226 or 227 of the Constitution of India. On reference, J.R. Bhave, J., held that the Claims Tribunal is a Civil Court; therefore, revision under Section 115 of Code of Civil Procedure would lie against the order passed by it. Reasoning given is that the Tribunal is constituted under the Statute. It discharges judicial functions of the sovereign State, untrammelled by executive considerations and while discharging functions, it is required to follow the well recognised judicial principles. The Tribunal is subordinate to the High Court; therefore, where the appeal is not available, revision under Section 115 of the Code of Civil Procedure is maintainable. In Paragraphs 14, 15 and 16 of the said judgment, it has been held :
"Para 14 : So far as that is concerned we have seen that there is no decision of this High Court. The decision as we have seen is in the Workmen's Compensation Act in which the provisions are the same as in the Motor Vehicles Act. I see no reason, therefore, why the Claims Tribunal should also not be held subordinate to the High Court. In Gitabai v. General Manager, M.P. Roadways of the Gwalior Bench decided by Sharma, J., on 9-12-1963 a miscellaneous appeal was filed against a claim which was dismissed in default. Preliminary objection that no appeal lies was upheld and His Lordship Sharma, J., observed :
"But a revision would lie against an interlocutory order passed by the Claims Tribunal in such cases."
His Lordships heard the case as a revision and set aside the order of dismissal in default. In Lucky Bharat Garage (P) Ltd., Raipur v. Shanti Devi Shrivastava and Ors. (1969 ACJ 161), similarly a revision against the order of a Claims Tribunal was entertained and allowed. It is true that no question was directly raised about the maintainability of any petition for revision under Section 115, Civil Procedure Code."
"Para 15 : A reference was made at the Bar to the decision Brajnandan Sinha v. Jyoti Narain (AIR 1956 SC 66). That was a case under the Contempt of Courts Act. While discussing the essential tests of a judicial pronouncement, their Lordships also observed :
"It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a Judicial Tribunal, power to give a decision or a definite judgment which has finality and authoritativeness which are the essential tests of a judicial pronouncement."
It is clear that a Claims Tribunal under Motor Vehicles Act as well as Commissioner under the Workmen's Compensation Act have power, apart from having some of the trappings of a Judicial Tribunal to give a decision or a definite judgment which has finality and authoritativeness. Both the authorities act as Courts and are subordinate to the High Court."
"Para 16: Thus, we see that the conditions laid down under Section 115, Civil Procedure Code are fulfilled in the case of a Tribunal under the Motor Vehicles Act. It is a 'Court' as has been held in a number of cases mentioned above. It is subject to the appellate jurisdiction is also clear from the Statute itself. The power to revise is exerciseable whether we take that: the revisional power is included in the appellate power as observed in AIR 1970 Supreme Court 1 or because it fulfils the two conditions mentioned under Section 115, Civil Procedure Code."
10. Single Bench of this Court in New India Assurance Co. Ltd. v. Ajay and Ors. (1994 ACJ 987) also followed : 1971 ACJ 372 (supra) and held that the Claims Tribunal is a Civil Court subordinate to the High Court and a revision against the order/interim order of the Tribunal is maintainable. Same view has been taken by the Single Bench of Rajasthan High Court in Dushyan Kumar and Ors. v. Rajasthan State Transport Corporation and Ors. (1991 ACJ 150), which follows the Division Bench decision of the same Court in Darshan Singh v. Ghewarchand (1993 ACJ 534). In Sarjubai v. Gurudip Singh and Ors. (1994 ACJ 997), this Court held that the Claims Tribunal is a Civil Court subordinate to the High Court and its orders are amenable to revisional jurisdiction of the High Court. The Division Bench followed the earlier decision of this Court reported in 1971 ACJ 372 (MP) (supra) and another judgment of Rajasthan High Court in 1993 ACJ 534 (supra) and dissented from the view taken in Dimple v. Lajjaram and Ors. (1992 ACJ 967). In Paragraphs 7 and 8 of the judgment reported in Sarjubai v. Gurudip Singh and Ors. (1994 ACJ 997), the Division Bench said :
"Para 7: The distinction between the Courts of general jurisdiction was noted by their Lordships of Privy Council in Rajah Nilmoni Singh Deo Bahadur v. Taranath Mookerjee (9 IA 174) and the observations of that case were interpreted by the Madras High Court in the case of Sriramrao v. Suryanarayana Murthi (AIR 1954 Nadrasm 340), to mean thus :
"Courts constituted for deciding on purely civil questions between persons seeking their civil rights must be considered to be Civil Courts, notwithstanding that they are created by a special statute and are mentioned in that statute as distinct from Civil Courts. The true import of such a distinction is that while special Courts have jurisdiction over a limited class of suits specified in the statute the jurisdiction of the Civil Courts is not limited to any class of suits. To this extent, there is a distinction between the two classes of Courts but in respect of the class of suits actually entrusted to the jurisdiction of special Courts they perform in relation to them functions which but for the special Act would have been performed by Civil Courts and to that extent the special Courts can be said to be Civil Courts in a different attire."
"Para 8 : In the case of Shankar Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat (AIR 1970 SC 1), the Supreme Court for determining whether a Court or Tribunal is subordinate to the High Court or not, has observed thus :
"The right of appeal is one of entering a Superior Court and invoking its aid and interpretation to redress the error of the Court below. Two things which are required to constitute appellate jurisdiction are the existence of the relation of superior and inferior Court and the power on the part of the former to review decisions of the latter. When the aid of the High Court is invoked on the revisional side, it is done because it is a Superior Court and it can interfere for the purpose of rectifying the error of the Court below. Section 115 of the Code of Civil Procedure circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a Superior Court. It is only one of the modes of exercising power conferred by the statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense."
Further, in Para 12 of the said judgment, the Division Bench held :
"Para 12 : A Full Bench of this Court in case of Sarmaniya Bai v. Madhya Pradesh Rajya Parivahan Nigam, 1990 ACJ 862 (MP), wherein the question was whether the Claims Tribunal passing an award under the provisions of the Act for compensation to claimants for death or injuries lacks jurisdiction to enforce its award adopting procedure provided under the Code of Civil Procedure, exercising its inherent jurisdiction in that regard, referring to the provisions of Section 110-C and Rule 297 of the Rules, in Para 15 relying on the decision of the Supreme Court in the case of State of Haryana v. Darshana Devi, 1979 ACJ 205 (SC) and a decision of Apex Court in case of Bhagwati Devi v. I.S. God (1983 ACJ 123) (SC), wherein it has been held that the Claims Tribunal was a Civil Court, it observed that the Tribunal is a Court of Civil Judicature which is required to flow the procedure prescribed under the Code of Civil Procedure in that regard. It is obviously an essential attribute of the Claims Tribunal that it acts judicially and exercises civil jurisdiction in deciding claims relating to civil wrongs and civil liability of tortfeasors and liability also of insurer, arising out of statutory and contractual obligations. The jurisdiction of the Tribunal in applying any provision of the Code of Civil Procedure for exercising any power in accordance with the procedure prescribed in the Code of Civil Procedure is not impaired in any manner as it has got all the trappings of the Civil Court. In Para 19, it was further observed that the true character of the Claims Tribunal is exposed by the requirement of the same being constituted by judicially trained persons of high calibre such as a District Judge or a High Court Judge as per Section 110(3). Factually, the position is more potent and patent in this State as District Judges and Additional District Judges are appointed under Section 110 to perform duties of Claims Tribunal as per Section 3, M.P. Civil Courts Act, 'Civil Courts' are constituted with them (among others), in this State. Therefore, the Court held by reading the provisions that the Claims Tribunal exercises jurisdiction of a Civil Court and as such it has jurisdiction to execute its own award under the provisions of Order 21 of the Code of Civil Procedure."
Further, in Paras 13, 14 and 15 of the said judgment, the Division Bench observed :
"Para 13: Therefore, from the above discussion, it is clear that the Claims Tribunal is a 'Civil Court' and is subordinate to High Court, its orders are amenable to revisional jurisdiction of the High Court under Section 115 of the Code of Civil Procedure.
Para 14 : However, the decision in Dimple's case, 1992 ACJ 967 (MP), rendered by Dr. T.N. Singh, J., takes a contrary view, wherein it has been held that no revision lies against an order rejecting an application under Section 140 of the Act, placing reliance on a Full Bench decision of this Court in the case of Gaya Prasad v. Suresh Kumar, 1992 ACJ 200 (MP), learned Judge observed that the provision of appeal or revision is creature of the statute. If legislature in enacting the special law thought it advisable not to create the remedy of revision in respect of any order passed by the Claims Tribunal and thought it fit to provide appeals only against certain orders passed by the Tribunal. Power to make an order under Section 140 conferred on the Claims Tribunal under special law and any order passed by the Tribunal is not to be affected obviously in any manner by the provisions of the Code of Civil Procedure, including Section 115 thereof.
Para 15: With respect, we may say that in case of Gaya Prasad, 1992 ACJ 200 (MP), the point of controversy was whether against an order of interim award passed under Section 140, an appeal lies under Section 173 of the new Act. While dealing with the question, the Court observed that appeal is maintainable only against the award determining the compensation under Section 168 though interim order passed under Section 140 is in the case of trial of the claim it carries also the implication of the finality, as interim order is not impugnable under any provisions of Chapter XII. Indeed, legislature's competence to make non-appealable any interim order from the scheme of Chapter X is beyond dispute, while R.C. Lahoti, J., took a contrary view. However, in that case, no question was involved for determination whether a 'Claims Tribunal' is subordinate to High Court and its orders are amenable to the revisional jurisdiction. Therefore, in our opinion, in case of Dimple, 1992 ACJ 967 (MP), reliance on Gaya Prasad's case, 1992 ACJ 200 (MP), was not appropriate. However, if the learned Judge was of the view that the order of the Claims Tribunal is not amenable to revisional jurisdiction of the High Court as the Claims Tribunal is not a 'Civil Court', with due respect, we are of the view that a Judge sitting singly could not have taken a contrary view to the one taken by the third Judge, on difference of opinion in Krishan Gopal's case 1971 ACJ 372 (MP). Therefore, the view taken in Dimple's case (supra) and followed by R.C. Lahoti, J., in Safiya Khatun v. Shivnesh Chandra, Civil Revision No. 137 of 1992; decided on 30-9-1992, is contrary to the view taken in Krishan Gopal's case (supra), we respectfully are unable to subscribe and respectfully agree with the view taken in Krishan Gopal's case (supra) and in case of New India Assurance Co. Ltd. v. Ajay, 1994 ACJ 987 (MP)."
11. In Bhagwati Devi and Ors. v. Goyal and Ors. (1983 ACJ 123), the Apex Court observed that :
"In view of observations of the Apex Court in the State of Haryana v. Darshan Devi and Ors. [1979 ACJ 205 (SC)] we are of the view that the Motor Accidents Claims Tribunal constituted under the Motor Vehicles Act is a Civil Court for the purposes of Section 25 of the Code of Civil Procedure....."
12. In Dimple v. Lajjaram and Ors. (1992 ACJ 967 (MP)), Dr. T.N. Singh, J., took the view that the Tribunal is not a Court subordinate to High Court and revision in terms of Section 115 of the Code of Civil Procedure against an order of the Claims Tribunal is not maintainable. The Claims Tribunal is a creature of the Act and not of Civil Procedure Code. The revision being not contemplated under the Act, jurisdiction of High Court cannot be invoked under Section 115 of the Code of Civil Procedure though claimant may invoke writ jurisdiction of the High Court for redressal of grievance against the order. In Paragraph 13, the learned Judge said :
"Para 13 : Law, in my view, is well settled that the provision, whether of appeal or revision, is creature of statute. If Legislature in enacting the special law thought it advisable not to create the remedy of revision in respect of any order passed by the Claims Tribunal and thought it fit to provide appeals only against certain orders passed by the Tribunal, judicially the Claims Tribunal cannot be vested with the revisional jurisdiction. This Court's Full Bench in Gaya Prasad, 1992 ACJ 200 (MP), as indeed held that Chapter X is a self-contained Code and what is also clear is that neither in that Chapter nor in Chapter XII which deals with the powers, jurisdiction and the functions of the Claims Tribunal, is made any provision of revision against an order passed by the Tribunal. Reference may be appropriately made also in this connection to Rajmata Vijayaraje Scindia's case, 1988 MPLJ 78, wherein the Division Bench at Para 7 of the report referred to Section 4, Civil Procedure Code, and that is relevant to the instant controversy. A plain and simple reading of Section 4 makes it clear that 'nothing in this Code shall be deemed to limit or otherwise affect any special or local laws not in Court or any special jurisdiction or power conferred'. Power to make an order under Section 140 is a special power conferred on the Claims Tribunal under special law and any order passed by the Tribunal in exercise of that power is not to be affected obviously in any manner by any provision of Civil Procedure Code including Section 115, Civil Procedure Code. For that holding inspiration may also be invoked from Shah Babulal Khimji's case, AIR 1981 SC 1786. Obviously, the High Court in dealing with any matter arising out of the proceeding before the Claims Tribunal under the Motor Vehicles Act would be exercising its jurisdiction with reference to provision of that Act and not of Civil Procedure Code and it would be exercising 'special jurisdiction' under that Act and it has to find powers for interfering with any order passed in that proceeding in revision not outside that Act; revision being not contemplated under the new Act, that jurisdiction the High Court cannot assume unauthorisedly."
13. Five Judge Bench of this Court in Oriental Insurance Co. Ltd. v. Chintaman and Ors. (1995 ACJ 225) overruled Gaya Prasad's case (FB). In Paragraph 3, it has been held :
"Para 3 : The cases involve grant or refusal, as the case may be, of compensation by Motor Accidents Claims Tribunal under Section 140 of the Act in the absence of the parties having invoked either jurisdiction of the High Court under Section 115 of the Civil Procedure Code, 1908, or the supervisory jurisdiction of this Court under Article 226 of the Constitution. They have done so in view of the decision in Gaya Prasad 's case, 1992 ACJ 200 (MP), to the effect that no appeal lies against a decision of the Tribunal under Section 140 of the Act. Two Judges of the Full Bench took that view while the third Judge took a contrary view. The Full Bench overruled an earlier decision of the Division Bench in Oriental Insurance Co. Ltd. v. Pritamlal, 1989 ACJ 1129 (MP), where it has been held that an appeal lies against such an award."
Referring to the scheme of the Act, Five Judge Bench in Paragraphs 11 to 13 said:
"Para 11: The decision of Gaya Prasad's case, 1992 ACJ 200 (MP), proceeded on the basis that the determination of compensation under Section 140 of the Act is not an award and, therefore, appeal under Section 173 would not lie against such determination. The provisions in Chapter X only declared the rights and liability of the parties and the details of such rights and liabilities. The provisions in Chapter X do not provide the procedure for determination of the claim under Section 140 and do not indicate whether the determination should be by way of an order or a judgment or an award. The irresistible conclusion is that Chapter X is not a self-contained code. To effectuate the provisions of Chapter X, the Tribunal must necessarily follow the relevant provision of Chapter XII. Chapter XII has an impact on the claim under Section 140 which is clear from the explanation to Sub-section (1) of Section 165, proviso to Sub-section (2) of Section 166 and the proviso to Sub-section (1) of Section 168. By those provisions, some of the provisions of Chapter XII are attracted in the matter of determination of the compensation payable under Section 140 of the Act. The Tribunal is constituted also for the purpose of determining the claim for compensation under Section 140. The claim for compensation under Section 140 may be made in the application in which the compensation for fault liability is also claimed. Section 168 contemplates an award being passed on the application made under Section 166. In the generality of cases, claims under Section 140 are projected in the application filed under Section 166 of the Act. The determination of the right and liability under Section 140 is made following the procedure prescribed in Section 168. The provision, the proviso to Sub-section (1) of Section 168 that the claim under Section 140 has to be disposed of in accordance with the provisions of Chapter X makes abundantly clear that such determination is only under Sub-section (1) of Section 168. This provision is made since liability under Section 140 is no fault liability and the quantum of compensation is pre-determined by the statute so that in making the determination, the quantification cannot be gone into and the fault of the respondents is not relevant. These circumstances make it amply clear that the determination of right or liability under Section 140 of the Act amounts to an award as contemplated in Section 168. The provisions of Chapter X are beneficial in character. The parallel provision in the Motor Vehicles Act, 1939, were incorporated only in response to the suggestions repeatedly made by Courts of this country. Those suggestions are made in order to help persons who are injured in such accidents or the legal representatives of persons who sustained fatal injuries in such accidents and to secure them minimum amount of compensation without being compelled to prove the fault of the persons whose fault alone would give rise to compensation according to principles of law of Torts. If the determination of the compensation payable under Section 140 of the Act is not to be regarded as an award, certain beneficial aspects of Sections 168 and 173 would be denied to the claimants who may be dragged to the superior counts by challenges against such determination. The benefit of Section 168(2) requiring the Tribunal to deliver copies of the award to the parties expeditiously, of Sub-section (3) of Section 168 requiring the person liable to deposit the amount awarded by the Tribunal within 30 days, and of the requirement in the proviso to Sub-section (1) of Section 173 to deposit Rs. 25,000/- of fifty per cent of the award, whichever is less, in the High Court as pre-condition for entertainment of the appeal, will not be available to the claimants. It is not possible to accept that the legislature which introduces no fault liability in the 1939 Act and the 1988 Act intended to deprive such claimants of the beneficial provisions referred to above. If the party against whom a claim is made for compensation under Section 140 desires to challenge the determination of the liability before the superior Court either by way of revision or under Article 226 of the Constitution, the claimants will not secure the benefits that he would have otherwise secured under Section 173(1) of the Act. It is not possible to accept that such was the legislative intention."
"Para 12 : 'Award' is explained in Black's Law Dictionary, Fourth Edition, at page 174 as meaning "to grant, concede, or adjudge to; to give or assign by sentence or judicial determination...... the decision or determination rendered by arbitrators or commissioners, or other private or extrajudicial deciders, upon a controversy submitted to them, also the writing or document embodying such decision". An award, as generally understood, is a document incorporating the adjudication or determination of a matter in dispute by a person competent to adjudicate or determine the dispute. There is nothing in Chapter X or XII of the Act to indicate that any different meaning has been attributed to the expression in Section 173 of the Act. The decision of liability under Section 140 is an award which can be challenged under Section 173."
"Para 13: The Motor Vehicles Act, 1988, does not define an award. It must, therefore, follow that the expression 'award' contained in the provisions referred to above carries its general meaning and content. A decision under Section 140 is a decision on a claim for compensation thereunder. It must be passed after following the procedure contemplated in Section 166(2) of the Act. It must indicate the findings and the reasons, at least briefly. These attributes of 'determination' of a claim under Section 140 would certainly make the 'determination' an award for the purpose of Section 166 as well as Section 173 of the Act. With great respect, we are of the opinion that the decision in Gaya Prasad's case, 1992 ACJ 200 (MP), does not lay down good law, to the extent it holds that an appeal does not lie under Section 173 of the Act against determination of a claim for compensation under Section 140 of the Act. We hold that determination of a claim under Section 140 of the Act is an award and an appeal lies against such an award under Section 173 of the Act."
Finally, in Para 14 of the said judgment, it is said :
"Para 14 : There cannot be any doubt that where an appeal lies revision cannot lie (See : S.S. Khanna v. F.J. Dillon, AIR 1966 SC 497 and Sunderlal v. Paramsukhdas, AIR 1968 SC 365). This principle has been introduced in Section 115 of the Civil Procedure Code by means of Sub-section (2) incorporated by Amendment Act No. 110 of 1976. Sub-section (2), states that the High Court shall not under this section vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto. Since we have held that an appeal lies, it follows that a revision does not lie. Since the appeal lies, it will also follow that the impugned award is not liable to be challenged under Article 227 of the Constitution of India."
14. Full Bench decision of Gauhati High Court in United India Insurance Co. Ltd. v. Member, MACT, Lakhimpur (1993 Gau. 28), it is held in Para 6 that--
"Para 6 : We notice that almost all the High Courts have more or less uniformly held that the restriction in Section 96(2) would operate on the insurer at the appellate stage also. See the three Full Bench decisions referred to earlier and also Kantilal and Bros. v. Ramaraju, AIR 1979 Cal. 152, United India Fire and General Ins. Co. Ltd. v. Gulab Chandra Gupta, 1985 ACJ 245 (Allahabad High Court), New India Assurance Co. Ltd. v. Shakuntala Bai, 1987 (1) ACJ 224 (Madhya Pradesh High Court, Gwalior Bench, Dr. T.N. Singh, J.), General Assurance Society Ltd. v. Jayalakshmi Ammal, AIR 1975 Madras 198, Abdlkadar Brahim Sura v. Kashinath Moreswar Chandani, AIR 1968 Bom. 267. The United Fire and General Ins. Co. Ltd. v. P. Parvathamma, AIR 1981 AP 227, United India Fire and General Insurance Co. Ltd. v. Smt. Kalyani, AIR 1982 Kerala 315, Hindustan General Insurance Society Ltd. v. Satish Chandra Paul, AIR 1972 Tripura 9, New India Assurance Co. Ltd. v. Smt. Nathiben Chatrabhuj, AIR 1982 Guj. 116 (FB). The Northern India General Insurance Co. Ltd. v. L. Krishnan, AIR 1973 Mysore 107, Vanguard Co. Ltd. v. Rabinder Kaur, AIR 1980 Punjab & Haryana 250, Kamla Devi v. Navin Kumar, AIR 1973 Raj. 79."
In Paragraph 16, it is said :
"Para 16: In view of what is indicated above, we hold that Hemendra Dutta Choudhury's case (1987) 2 GLR 450, does not lay down good law and the insurer is bound by Section 96(2) (Section 149 of 1988 Act) in the appellate forum also and the right of appeal is restricted to raising contentions enumerated in Section 149 of the Act unless, of course, the Tribunal has passed an order under Section 170 of the Act, or unless the insurer has reserved in the policy the right to contest the claim on behalf of the insured. The reference is answered accordingly."
Similar view has been taken by the High Court of Bombay in Oriental Fire & General Insurance Co. Ltd. v. Rajrani (AIR 1989 Bom. 378) in Paragraphs 5 and 6, which are as extracted below :
"Para 5: Under Section 96(6) no insurer to whom notice referred to in Sub-section (2) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment as is referred to in Sub-section (1) otherwise than in the manner provided for in Sub-section (2). In interpreting this provision the Supreme Court said that apart from this statute an insurer has no right to be made a party to the action by the injured person against the insured causing the injury. Sub-section (2) of Section 96 however, gives it the right to be made a party to the suit and to defend it. The right therefore, is created by statute and its content necessarily depends on the provisions of the statute. It has held that the defences which the insurer can take, are only those which are permitted under Sub-section (2). Thus, Sub-section (2) of Section 96 expressly enumerates these defences. No other defence can be raised by the insurer."
"Para 6 : This decision of the Supreme Court has been followed in a number of decisions by several High Courts. For example the Madhya Pradesh High Court in a Full Bench decision in the case of Mangilal v. Parasram reported in 1970 ACJ 86 : (AIR 1971 Madh Pra 5) held that the insurer can only take such defences as are open to the insurer under Section 96(2). The Full Bench of Orissa High Court in the case of National Insurance Co. Ltd. v. Magikhatia Das, reported in 1976 Acc CJ 239 : (AIR 1976 Orissa 175) held also that an insurer can only take up defences under Section 96(2) of the Motor Vehicles Act and that even in appeal the insurer cannot take defences other than those permitted under Section 96(2). A Full Bench of the Jammu and Kashmir High Court in the case of United India Fire and General Insurance Co. Ltd. v. Lakshmi Shori Ganjoo, reported in 1982 Acc CJ 470 : (AIR 1982 J & K 105) has also taken a similar view. Calcutta, Allahabad, Orissa, Rajasthan as well as Patna High Courts have taken the view that even in appeal the insurer cannot take defences other than those permitted under Section 96(2). See in this connection 1980 Acc CJ 501: (AIR 1979 Cal 152) (Kantilal & Bros. v. Ramarani Debi) : 1985 Acc CJ 245 : (AIR 1985 All 44) (All) United India Fire and General Insurance Company Ltd. v. Gulab Chandra Gupta) : 1988 Acc CJ 224 : (AIR 1987 Madh Pra 244) (New India Assurance Co. Ltd. v. Shakuntala Bai) : AIR 1988 Orissa 202 (The New India Assurance Co. Ltd. v. Smt. Sulochana Sahu): AIR 1988 Madh Pra 189 (United India Insurance Co. Ltd. v. Ismail) : AIR 1988 Raj 191 (National Insurance Co. Ltd. v. Smt. Tulsi Devi) and 1985 Acc CJ 749 (Pat) (National Insurance Co. Ltd. v. Shamim Ahmad). The Insurance Company has been permitted to take other defences available to the insured only when it is so authorised by the insurer on behalf of the insured."
The Full Bench decision of Orissa High Court in National Insurance Co. v. Mangikhaia Das (AIR 1976 Ori. 175), said in Para 6 that:
"Para 6 : As the facts of this case show, the insured had entered contest and there is no reason to hold in the absence of any allegation, and something more, that the insured has been colluding with the claimant. Leave of the Tribunal had admittedly not been taken under Section 110 C (2-A) of the Act. There exists a clause in the policy bond authorising the insurer to defend in the name of the insured. As we have already noted, the insured and the insurer simultaneously wanted to defend, the insured defending in his own name and the insurer in its own name. The term in the policy bond did not authorise such defence by the insurer the restriction under Section 96(2) of the Act applies and he could not travel beyond the restriction imposed by the Statute either before the Tribunal or in appeal before this Court. None of the grounds in the memorandum of appeal appertain to a defence raised within Section 96(2) of the Act and what is being mainly challenged is the quantum and liability on a ground not covered by Section 96(2) of the Act. On these grounds, the insurer was not entitled to contest the claim nor the award. The appeal filed on its behalf, therefore, is not maintainable."
The Division Bench of Kerala High Court in United India Insurance Company Ltd. v. K.N. Surendran Nair (AIR 1990 Ker. 206) in Paragraphs 5 and 6 said:
"Para 5 : This sub-section would suggest that an order under this section enabling an insurer to contest the claim on all or any of the grounds that are available to the insured, can be passed by the Tribunal only as a sequel to the order directing impleadment of the insurer, he would pass on his being satisfied that either there is collusion between the claimant and the insured or the insured has failed to contest the claim, the counsel representing the contesting respondents submit. We are not impressed by this argument. This sub-section, in our view, was introduced to safeguard the interests of the insurer, which going by Section 96(2) is not entitled to take any defence which is not specified therein. Apart from Section 96(2), an insurer has no right to get itself impleaded as a party to the action by the claimants against the insured causing the injury. This right is a statutory right. While conferring this right, Sub-section (2) of Section 96 has imposed certain restriction in regard to the defences, the insurer can take. The insurer is not entitled to take any defence which is not specified in that sub-section. In short, the only method of avoiding the liability provided for under Sub-section (2) is setting up the defences enumerated therein. (See : British India General Insurance Co. v. Captain Itbar Singh, AIR 1959 SC 1331). The restriction thus, imposed on the defences made it impossible for the insurer to contest the claim not properly contested by the insured. The intention of the legislature thus, is clear that sub-section is meant to safeguard the interest of the insurer. The objective of the sub-section could be achieved only if the insurer is allowed to contest the claim on all or any of the grounds available to the insured. However, a lateral adherence to the words used in the section, namely that 'an insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have the right to contest', could result in the insurer who had already been impleaded under Section 96(2), not getting the chance to contest the claim on all or any of the grounds available to be insured even if it is established that the insured is hand in clove with the claimants and as such not contensting the claim. A grammatical and lateral meaning of these words, in our view, would lead to manifest absurdity. In such circumstances, a construction not quite strictly grammatical or lateral can be adopted. (See : Craies on Statute Law 17th Edn. pages 87, 88). We, therefore, are of the view that the insurer who is already a party to be claim petition (having been impleaded under Section 96(2) can also avail of this defence. Such an insurer accordingly can move the Tribunal under this sub-section and obtained the requisite permission to contest the claim on all or any of grounds, the insured would take. If the insurer make an application in this regard, the Tribunal shall consider the same on merits after notice to the claimant and insured and passed appropriate orders in writing enabling the insurer to contest the claim on the grounds available to the insured. In the present case, there is nothing on record to show that the Insurer appellant has obtained such permission from the Tribunal and if that be so, the insurer appellant is not entitled to contest the claim on the ground that are available only to the insured. The above argument of the learned counsel therefore, is rejected.
Para 6 : We, nonetheless are constrained to consider yet another argument of the learned counsel namely, that in any event the appellant is entitled to contest the claim raising the grounds the insured alone can raise, in view of Clause (2) of the condition incorporated in the policy. Clause (2) reads :
"No admission offer promise payment or indemnity shall be made or given by or on behalf of the insured without the written consent of the Company which shall be entitled if it so desires to take over and conduct in the name of the insured the defence or settlement of any claim or to prosecute in the name of insured for its own benefits any claim for indemnity or damages or otherwise and shall have full discretion in the conduct of any proceeding or in the settlement of any claim and the insured shall give all such information and assistance as the Company may require."
Construing an identical clause, a Division Bench of this Court in United India Insurance Co. Ltd. v. Premakumaran, (1987) 2 Ker LT 817, no doubt, has observed that the said clause enables the Insurance Company to contest the claim on all or any of the grounds the insured alone could raise, notwithstanding the restrictions imposed by Sub-section (2) of Section 96. This observation of the Division Bench is based on a decision of the Madras High Court in Madras Motor and Genl. Ins. Co. Ltd. v. Jagadeeswari, 1974 Acc CJ 234 : (AIR 1974 Madras 318). The Madras High Court while holding so, has made reference to the decision of the Supreme Court in British India General Insurance Co. v. Captain Itbar Singh, AIR 1959 SC 1331. On going through the following observation of this Court, we are of the view that the above observation is obiter :
"There is some force in this argument of the learned counsel for the Insurance Company. However, we do not go into that question since we feel that the decision reported in British India General Insurance Co. v. Captain Itbar Singh, AIR 1959 SC 1331, may not be applicable to the case in hand."
In our view the decision of the Supreme Court does not lend support to the view taken by the Madras High Court which provides the basis for the above observation of the Division Bench. A reference in this connection to the following observations of the Supreme Court in British India General Insurance case, is profitable (at p. 1335):
"There is another ground on which the learned Solicitor General supported the contention that all defences are open to an insurer excepting those taken away by Sub-section (3). He said that before the Act came into force, an injured person had no right of recourse to the insurer and that it was Section 96(1) that made the judgment obtained by the injured person against the assured binding on the insurer and gave him a right against the insurer. He then said that, that being so, it is only fair that a person sought to be made bound by a judgment should be entitled to resist his liability under it by all defences which he can in law advance against the passing of it. Again, we find the contention wholly unacceptable. The Statute has no doubt create a liability in the insurer to the injured person but the statute has also expressly confined the right to aid that liability to certain grounds specified in it. It is not for us to add to those grounds and therefore, to the statute for reasons of hardship...."
The Supreme Court thereafter stated as follows (at p. 1335) :
"We are furthermore not convinced that the statute causes any hardship. First the insurer has the right, provided he has reserved it by the policy, to defend the action in the name of the assured if he does so, all defences open the assured can then be urged by him and there is no other defence that he claims to be entitled to urge. He can avoid all hardship if any, by providing for a right to defend the action in the name of the assured and this he has full liberty to do."
The Supreme Court made the above observation (underlined portion of the excerpt) at a time when Section 110-C (2-A) was not there. Whatever that be, the positive declaration of the Supreme Court namely "the Statute has no doubt created a liability in the insurer to the injured person but the statute has also expressly confined the right to avoid that liability to certain grounds specified in it. It is not for us to add to those grounds and therefore, to the statute for reasons of hardship" disentitles the appellant to rely on Clause (2) of the Insurance Policy and contend for the position that the said clause reserves its right to contest the claim on all or any of the grounds that are available to the insured. Sub-section 2-A of Section 110-C, as construed by us, entitled the insurer to contest the claim on all or any of the grounds available to the insured provided the Tribunal grants the requisite permission in terms of the said sub-section to the insurer to take up the said defence. There is another aspect that should be borne in mind while considering this question and it is this : This policy issued by the insurer is a policy of insurance in respect of third party risk, arising out of the use of motor vehicles, such as complies with the requirement Chapter VIII of the Act and includes unless the context requires otherwise, a cover note. The policy therefore should be one that complies with the requirements Chapter VIII of the Act. That means any clause or condition in the policy can have force only subject to the provisions contained in Chapter VIII of the Act. Clause 2 of the policy extracted above therefore, should be read and understood in the light of Sub-section 2-A of Section 110-C. This clause, to the extent to which it runs counter to the above sub-section is liable to be ignored. It, therefore, follows that an insurer with the permission of the Tribunal alone can contest the claim on all or any of the grounds, the insured can raise against the claim.
In the light of what is stated above, we are of the view that the appeal is not maintainable...."
In Oriental Insurance Co. Ltd. v. Motor Accidents Claims Tribunal (1999 ACJ 1015) it is held that the petition under Articles 226 and 227 against the awarded compensation of less than Rs. 10,000/-, does not lie. Statutory bar under the Motor Vehicles Act cannot be circumvented by filing petition under Article 226 or 227 of the Constitution of India. Right of appeal is a creation of statute. It is for legislature to provide or not to provide appeal. Paragraph 2 of the said judgment is as extracted below :
"Para 2: Having heard learned counsel for the petitioner in extenso, I am not satisfied that the petitioner(s) are entitled to succeed in these original petitions. It is the contention of the learned counsel for the petitioner that a petition under Articles 226 and 227 of the Constitution of India is the only remedy available to the insurance company in view of the express bar of an appeal created by Section 173(2) of the Act which says that 'no appeal shall lie against any award of a Claims Tribunal, if the amount in dispute in the appeal is less than ten thousand rupees'. Admittedly, in the award which is the subject matter of challenge in these original petitions award amount is less than Rs. 10,000/- in which case going by the mandate of Section 173(2) of the Act, no appeal will lie. According to the learned counsel when an appeal is barred, a petition under Articles 226 and 227 of the Constitution of India is maintainable to quash the award. I cannot agree. Once the legislature in its wisdom has thought it fit that no appeal shall lie against any award of a Claims Tribunal, if the amount in dispute in the appeal is less than Rs. 10,000/- this Court cannot lend its aid to the petitioner to circumvent the statutory bar by enabling it to question the award collaterally by filing a petition under Articles 226 and 227 of the Constitution of India. This Court cannot sit in judgment over the legislative wisdom and policy in regard to filing of appeals, more so when it is remembered that right of appeal is not a vested right or a constitutional right but a creature of the Statute. There is no inherent right of appeal from the original forum unless such a right is created by the statute which creates the forum. In other words, right of appeal is a creature of statute and it is for the legislature to provide or not provide appeal. The legislature can also impose condition for the maintainability of an appeal. Similarly, the legislature can create a total bar of appeal under certain circumstances as in the instant case. Since right of appeal inheres in no one an appeal for its maintainability requires clear authority of law. In the face of the express statutory bar against an appeal as contained in Section 173(2) of the Act, I do not think that this Court will be justified in interfering with the award in this proceeding under Articles 226 and 227 of the Constitution of India. No doubt, this Court can and will interfere in exercise of its jurisdiction under Article 226 or 227 of the Constitution of India provided the findings of the Tribunal are utterly perverse or the Tribunal has misdirected itself on points of law or when the statute simply says that the decision of the authority or Tribunal is final. That is not the case here. As already noticed, here is a total bar of appeal against any award of a Claims Tribunal if the amount in dispute in the appeal is less than Rs. 10,000/-. In such a case the defeated party cannot be permitted to upset the decision of the Tribunal by resort to proceedings under Articles 226 and 227 of the Constitution of India. The position will be different once the jurisdiction of the Constitutional Court is barred by the legislative device of a 'finality' clause as already noted. In such a case, this Court in exercise of its supervisory jurisdiction will certainly interfere with the impugned award, provided that sufficient grounds are made out notwithstanding the finality clause. The grounds usually urged in support of such interference are illegality and irregularity in the proceedings of the Tribunal, jurisdictional error or defect or the order being not in conformity with the fundamental principles of judicial procedure resulting in mis-carried of justice. No such ground has been made out in these original petitions."
The following Full Bench decision of the Gauhati High Court in United India Insurance Co. Ltd. v. Member, M.A.C.T., Lakhimpur (1993 ACJ 828), the Single Bench decision of the same High Court in New India Assurance Co. Ltd. v. Ranjit Ghosh and Anr. (1999 ACJ 159), holds that when Motor Vehicles Act provides for an appeal and the Insurance Company has limited defence under Section 149, the writ petition under Article 226 or 227 of the Constitution of India was not maintainable. Single Bench judgment of Himachal Pradesh in National Insurance Co. Ltd. v. Vipul and Ors. (1999 ACJ 695) following the decision of the same High Court in Mittar Singh v. Ashish Kumar and Ors. (1998 ACJ 1200) also holds that the petition under Article 227 of the Constitution was not maintainable, when the appeal under the Motor Vehicles Act was not maintainable in award less than Rs. 10,000/-. In National Insurance Co. Ltd. v. Vipul and Ors. (1999 ACJ 695), it is said in Paragraphs 11 to 13 that :
"Para 11 : Thus, taking into consideration the aforesaid facts reflected from the record itself the petitioner's right to assail the awards under reference under Articles 227 of the Constitution of India is not there. In case, the present petition is entertained and matter is to be argued like an appeal as has been contended by the learned counsel for the petitioner(s), the provisions under Section 173, Sub-section (2) of the Act would be rendered redundant and infructuous which is not the intention of the legislature."
"Para 12 : Otherwise, even if, for arguments sake the present petition(s) is maintainable in that event also in view of the limited scope of Article 227 of the Constitution of India, award(s) under reference cannot be assailed or set aside. According to the learned counsel for the petitioner(s), two grounds have been argued for assailing the award(s). First being application under Order 6, Rule 17 read with Order 1, Rule 10, Civil Procedure Code has been disposed of illegally and secondly the evidence has not been properly appreciated. I think both these grounds cannot be considered in a petition of present nature inasmuch as the inherent jurisdiction is laid with the Tribunal to dispose of the matter. To hear the petitioner(s) on the aforesaid grounds on merit would amount to decide the petition(s) just like an appeal which would be going against the statutory provision of Section 173(2) of the Act."
"Para 13 : Similar question arose in Mittar Singh v. Ashish Kumar, 1998 ACJ 1200 (HP), before another Bench of this Court, wherein it has been held that the provisions of Section 173(2) of the Act have to be read or construed in the manner so that the object of the provisions is not diverted. It has been further held that this Court while exercising extra-ordinary jurisdiction under Article 227 of the Constitution of India is not to sit as a Court of appeal or a revisional Court so as to correct errors of law or of fact committed by the subordinate authorities. It was further observed that the provisions of the Motor Vehicles Act being a social legislation for the welfare of the citizens, should be interpreted harmoniously so as to achieve the object for which the provision has been made."
15. In Vijay Prakash & Jawahar v. Collector of Customs (Preventive), Bombay (AIR 1988 SC 2010), the Apex Court in Paragraphs 9 to 13 said :
"Para 9 : Right to appeal is neither an absolute right nor an ingredient of natural justice the principles of which must be followed in all judicial and quasi-judicial adjudications. The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant."
"Para 10 : Counsel referred us to the decision of this Court in Collector of Customs & Excise, Cochi v. A.S. Bava (1968) 1 SCR 82 : (AIR 1968 SC 13). There, this Court found that Section 35 of the Central Excises & Salt Act, 1944 (Excise Act) gave a right to appeal. Under Section 12 of the Act, the Central Government was authorised to apply to appeals under the Excise Act the provisions of the Sea Customs Act, 1878 dealing with the procedure relating to appeals. In exercise of that power, the provisions of Section 129 of the Act were made applicable to appeals under the Excise Act. The Section required an appellant to deposit, pending the appeal the duty or penalty imposed, and empowered the Appellate Authority, in his discretion, to dispense with such deposit pending the appeal in any particular case. The respondent therein filed an appeal against the duty imposed on him under the Excise Act and prayed for dispensation of the deposit. The Collector, who was the appellate authority, rejected the prayer and when no deposit was made within the time fixed, dismissed the appeal. The respondent filed a petition in the High Court which was allowed and the Collector was directed to hear the appeal on merits. This Court held that Section 35 of the Excise Act gave a right of appeal and Section 129 of the Act whittled down that substantive right and, as such, Section 129 could not be regarded as 'procedure relating to appeals' within Section 12 of the Excise Act."
"Para 11: These observations cannot be applied to the facts of this case. Here, we are concerned with the right given under Section 129A of the Act as controlled by Section 129E of the Act, and that right is within a condition and thus a conditional right. The petitioner in this case has no absolute right of stay. He could obtain stay of realisation of tax levied or penalty imposed in an appeal subject to the limitations of Section 129-E. The proviso gives a discretion to the authority to dispense with the obligation to deposit in case of 'undue hardships'. That discretion must be exercised on relevant materials, honestly, bonafide and objectively. Once that position is established it cannot be contended that there was any improper exercise of the jurisdiction by the Appellate Authority. In this case, it is manifest that the order of the Tribunal was passed honestly, bonafide having regard to the plea of 'undue hardship' as canvassed by the appellant. There was no error of jurisdiction or misdirection."
"Para 12 : Though in a different context the public policy involved in not granting interim stay has been explained by this Court in Asstt. Collector of Central Excise, West Bengal v. Dunlop India Ltd., (1985) 19 ELT 22 : (AIR 1985 SC 330)."
"Para 13 : It is not the law that adjudication by itself following the rules of natural justice would be violative of any right constitutional or statutory without any right of appeal, as such. If the Statute gives a right to appeal upon certain conditions, it is upon fulfilment of these conditions that the right becomes vested and exercisable to the appellant. The proviso to Section 129-E of the Act gives a discretion to the Tribunal in cases of undue hardships to condone the obligation to deposit or to reduce. It is a discretion vested in an obligation to act judicially and properly."
16. Having given serious consideration to the question involved in this matter, it can be said that the Claims Tribunal are constituted under a special Act, which provides for licensing of drivers of motor vehicles, licensing of conductors of stage carriages, registration of motor vehicles, control of transport vehicles, special provisions relating to State Transport undertakings; construction, equipment and maintenance of motor vehicles; control of traffic, motor vehicles temporarily leaving or visiting India, liability without fault in certain cases, insurance of motor vehicles against third party risks; Claims Tribunal; offences, penalties and procedure and miscellaneous provisions under various Chapter. The Claims Tribunals are Civil Court, since they determine civil rights and liabilities. They are not Civil Court constituted under Civil Procedure Code. It provides for appeal against the order(s) and award(s) of Claims Tribunal in certain circumstances. Where appeal is not provided, recourse to revision under Section 115 of the Civil Procedure Code or Writ Petition under Article 227 of the Constitution of India would not be justified. The right to appeal is neither an absolute right nor an ingredient of natural justice. It is a statutory right and it can be circumvented by the conditions in the grant. If a statue gives a right to appeal under certain conditions that right becomes vested and exercisable by the appellant (See : Vijay Prakash & Jawahar v. Collector of Customs (Preventive), Bombay, AIR 1988 SC 2010. It may or may not provide for further remedy against order passed in appeal. Since it has not provided for revision, legislative intent cannot be set at naught by challenging the order or award of the Claims Tribunal under Section 115 of the Code of Civil Procedure or petition under Article 227 of the Constitution of India. Doing so would tentamount to mock at law enacted by the legislature. The Apex Court in Chinnama George and Ors. v. N.K. Raju and Anr. (2000 (4) SCC 130) held that the Insurance Company can challenge the award only on the ground under Section 149(2) and it cannot by pass the bar while including insured or driver since that may amount to mock at the law enacted by the legislature. It cannot defeat the claim by resorting to such a mode. In Paragraph 6, the Apex Court said :
"Para 6 : Admittedly, none of the grounds as given in Sub-section (2) of Section 149 exist for the insurer to defend the claims petition. That being so, no right existed in the insurer to file appeal against the award of the Claims Tribunals. However, by adding N.K. Raju, the owner as co-appellant, an appeal was filed in the High Court which led to the impugned judgment. None of the grounds on which the insurer could defend the claims petition was the subject matter of the appeal as far as the insurer is concerned. We have already noticed above that we have not able to figure out from the impugned judgment as to how the owner felt aggrieved by the award of the Claims Tribunal. The impugned judgment does not reflect any grievance of the owner or even that of the driver of the offending bus against the award of the Claims Tribunal. The insurer by associating the owner or the driver in the appeal when the owner or the driver is not an aggrieved person cannot be allowed to mock at the law which prohibits the insurer from filing any appeal except on the limited grounds on which it could defend the claims petition. We cannot put our stamp of approval as to the validity of the appeal by the insurer merely by associating the insured. Provision of law cannot be undermined in this way. We have to give effect to the real purpose to the provision of law relating to the award of compensation in respect of the accident arising out of the use of the motor vehicle and cannot permit the insurer to give him the right to defend or appeal on grounds not permitted by law by a backdoor method. Any other interpretation will produce unjust results and open the gates for the insurer to challenge any award. We have to adopt the purposive approach which would not defeat the broad purpose of the Act. The Court has to give effect to true object of the Act by adopting a purposive approach."
Further in Paragraph 9, it is said :
"Para 9 : The question that arises for consideration is : can the insurer join the owner or the driver in filing the appeal against the award of the Claims Tribunal as driver or owner would be the person aggrieved as held by this Court in Narendra Kumar v. Yarenissa (1998 (9) SCC 202 : 1999 SCC (Cr.) 245 ? This Court has held that appeal would be maintainable by the driver or the owner and not by the insurer and, thus, a joint appeal when filed could be maintainable by the driver or the owner. This is how the Court held : (1998 (9) SCC 202, para 7).
"Para 7 : For the reasons stated above, we are of the opinion that even in the case of a joint appeal by insurer and owner of offending vehicle if an award has been made against the tortfeasors as well as the insurer even though an appeal filed by the insurer is not competent, it may not be dismissed as such. The tortfeasor can proceed with the appeal after the cause-title is suitably amended by deleting the name of the insurer."
Thereafter, in Paragraph 10, the Apex Court said :
"Para 10 : There is no dispute with the proposition so laid by this Court. But the insurer cannot maintain a joint appeal along with the owner or the driver if defence on any ground under Section 149(2) is not available to it. In the situation, a joint appeal will be incompetent. It is not enough if the insurer is struck out from the array of appellants. The Appellate Court must also be satisfied that a defence which is permitted to be taken by the insurer under the Act was taken into pleadings and was pressed before the Tribunal. On the Appellate Court being so satisfied the appeal may be entertained for examination of correctness or otherwise of the judgment of the Tribunal on the question arising from relating to such defence taken by the insurer. If the Appellate Court is not satisfied that any such question was raised by the insurer in the pleadings and/or was pressed before the Tribunal, the appeal filed by the insurer has to be dismissed as not maintainable. The Court should take care to ascertain this position on proper consideration so that the statutory bar against the insurer in a proceedings of claim of compensation is not rendered irrelevant by the subterfuge of the Insurance Company joining the insured as a co-appellant in the appeal filed by it. This position is clear on a harmonious reading of the statutory provisions in Sections 147, 149 and 173 of the Act. Any other interpretation will defeat the provision of Sub-section (2) of Section 149 of the Act and throw the legal representatives of the deceased or the injured in the accident to unnecessary prolonged litigation at the instance of the insurer."
17. By now, in series of decisions, Courts have said that unless permission under Section 170 of the Act is obtained by the Insurance Company during enquiry before the Claims Tribunal, it cannot avail defences other than those mentioned in Sub-section (2) of Section 149 of the Act. The contention of Shri Sanjay Agrawal that restricted defences available to the Insurance Company under Section 149(2) and Section 170 seeking permission of the Court for availing other defences, are confined to trial stage and once the award is passed, the Insurance Company has right to challenge legality, propriety and correctness of the award in the Appellate Court without any restrictions under Section 173 of the Act, cannot, therefore, be accepted. Similarly, contention that the Apex Court in Himaliyam Tiles and Marbles Pvt. Ltd. v. Francis Victor Coutinbo (AIR 1980 SC 1118) and U.P. Awas Avam Vikas Parishad v. Gyan Devi (AIR 1995 SC 724) by High Court of Allahabad in New India Assurance Co. Ltd. v. Jagdish Prasad Pandey (1998 ACJ 404) interpreting "person interested" should include "person aggrieved" by award under the Act; therefore, no restriction is intended by Section 173 of the Act, cannot be accepted. The Apex Court was considering the provisions of the Land Acquisition Act, 1894, and not Section 173 of the Act. Section 173 of the Act has to be read along with Sections 149(2) and 170 of the Act. Their operation is not confined to trial stage, as contended. It continues and in case, the insurer has obtained order from the Claims Tribunal at the trial stage, only then he can assail the award on all available grounds before the Appellate Court otherwise limited defences under Section 149(2) are available to it. Reading of Section 173 of the Act with other two provisions would demonstrate that "any person aggrieved by an award" is not same thing as "person interested". Former has restricted meaning than the later. The claimant can be aggrieved by the award, if it is less or his claim petition is rejected. The insurer, insured and driver may be aggrieved where claim is allowed and responsibility fixed for payment of compensation. But they can appeal after satisfying the conditions mentioned in Section 173 of the Act and in case of Insurance Company, further restriction is that it cannot challenge the award except on grounds mentioned in Section 149(2) of the Act unless reasoned order from the Claims Tribunal for taking up other defences is obtained during the trial stage. (See : British India General Insurance Co. Ltd. v. Captain Itbar Singh, 1959 SC 1331; Oriental Fire & General Insurance Co. v. Rajendra Kau, 1989 ACJ 961; New India Assurance Co. Ltd. v. Jagdish Prasad Pandey and Ors., 1998 ACJ 404 and Shankaryya v. United India Insurance Co. Ltd., 1998 (3) SCC 140).
18. Decision of this Court in United India Insurance Co. Ltd. v. Ramdas Patil and Ors. [2000(2) M.P.H.T. 278 = AIR 2000 MP 63] runs counter to the Five Judge Bench decision of this Court. The question before the Division Bench was not whether revision would lie under Section 115 of the Code of Civil Procedure where compensation awarded is below Rs. 10,000/-but the issue posed before the Division Bench was whether insured could take resort to revision where compensation awarded is shockingly high. It has been found in the preceding part of the judgment that the Tribunal is a Civil Court as distinguished by the Criminal Court, discharging functions assigned to them under the special Act, though subordinate to High Court. The order(s)/ award(s) passed by them can be questioned in the superior Court only on grounds and in circumstances available under the Act and the provision of Civil Procedure Code has application only to the extent provided in Section 169 of the Act read with rules framed by the State Government under Section 111A.
19. Therefore, where appeal is provided, revision under Section 115 of the Code of Civil Procedure or petition under Article 227 of the Constitution of India is not available. In the circumstances, where Insurance Company cannot file appeal, it cannot file revision under Section 115 of the Civil Procedure Code or a petition under Article 227 of the Constitution of India.
20. What emerges out of the aforesaid discussion is that this Civil Revision is not maintainable and the same is dismissed. However, parties are left to bear their own cost. Before parting with this case, appreciation for service rendered by Sarvashri Ravish Agrawal, Senior Counsel, S.K. Seth, AAG and Sanjay Agrawal, Advocate, in dealing with the question raised in this revision is recorded.