Gujarat High Court
Gagubhai And Ors. vs Goswami Bhikhu Gangaram on 13 January, 1989
Equivalent citations: AIR1990GUJ5, [1990]68COMPCAS124(GUJ), (1989)1GLR655, AIR 1990 GUJARAT 5
JUDGMENT J.P. Desai, J.
1. These two appeals arise out of the common judgment delivered by the Motor Accidents Claims Tribunal, Kutch at Bhuj In MADCAP. No.276 of 1983 and MADCAP. No. 272 of 1986 whereby awards for Rs. 1 lac and Rs. 61,720/- have been passed respectively in the aforesaid applications. These two appeals are being disposed of by this common judgment as they arise out of the common judgment delivered by the learned Tribunal.
2. In MADCAP. No. 276 of 1983 the amount claimed was Rs. 1 lac while in MADCAP. No. 272 of 1983, the amount claimed was Rs. 75,000/-. It may be mentioned here that two other applications were also filed arising out of the same incident in which the claim did not exceed Rs. 25,000/-. These four applications were heard together and disposed of by a common judgment. It may be mentioned here that the procedure laid down by O.XIX of the C.P.C. was followed by the Tribunal in disposing of all these applications. The claims in the two petitions exceed Rs. 25,000/- and, therefore, the grievance made by the appellants is that the learned Tribunal committed an error in following the procedure of deciding the applications on affidavits.
3. Rule 300 of the Bombay Motor Vehicles Rules, 1959, which will hereinafter be referred to as 'the Rules' for the sake of brevity, says that after framing the issues, the Claims Tribunal shall proceed to record evidence thereon which each party may desire to produce. R. 310 of the Rules lays down that in so far as these rules make no provision or make insufficient provision, the Claims Tribunal shall follow the procedure laid down in the Code of Civil Procedure, 1908, for trial of Courts. The above two Rules have never been amended at any time. Rule 311 which is captioned as "savings", which was lastly amended in the year 1980 reads as follows:
"Notwithstanding anything contained in these rules--
(a) In case of claim not exceeding an amount of Rs. 10,000/- the Claims Tribunal may, at its discretion after hearing the arguments of the parties or of their legal practitioners, if the parties are allowed to appear before it through a legal practitioner under Rule 308, and examining the documents and affidavits accompanying the application for compensation, decide the claim by recording a concise judgment; and
(b) in case of claim exceeding an amount of Rs. 10,000/- but not exceeding an amount of Rs. 25,000/- the Claims Tribunal may follow, at its discretion the provisions of O. 10 of the Civil Procedure Code."
Rule 311 as amended in 1980 reads as reproduced above and it is an admitted fact that thereafter the said Rule has never been amended. In view of this, it is crystal clear that when the claim exceeds Rs. 25,000/- the Claims Tribunal, Main or Auxiliary as the case may be, has to follow the procedure laid down in the C.P.C. for trial of suits. The Claims Tribunal has to record evidence which each party may desire to produce after the issues are framed when the claim exceeds Rs. 25,000/-. Such procedure has to be followed when the claim exceeds Rs. 25,000/- and that procedure having not been followed in the trial of the present applications, the awards passed by the Tribunal can be said to have been passed without following the procedure laid down in the Rules.
4. It maybe mentioned here that Clause (b) of R. 311 refers to O. 19, C. P.C. R. 1 of O. 19, C. P.C. gives power to the Court to decide any point to be proved by affidavit. This can be done only when the claim does not exceed Rs, 25,000/-.
5. It appears that the learned Tribunal has, in view of certain Notifications issued by the Government of Gujarat in exercise of the powers conferred by S. 110 of' the Motor Vehicles Act, 1939 (hereinafter to be referred to as 'the Act'), gathered an impression that when the claim does not exceed Rs. 1 lac the Tribunal can follow the procedure laid down in O. 19, C.P.C. It may be mentioned here that S. I 10 of the Act confers powers upon the State Government to constitute a Claims Tribunal or Claims Tribunals and in exercise of those powers, the State Government issued a Notification on 17-1-1978 published in the Gujarat Government Gazette Extraordinary, Part IVA on 17-4-1978 constituting certain Tribunals at Ahmedabad and in the districts the State of Gujarat. Thereafter, another Notification was issued in exercise of the powers conferred by S. 110 of the Act on 29-5-1980 and that was published in the Gujarat Government Gazette, Extraordinary, Part IVA on 29-5-1980 and the last Notification was issued in 1987 also in exercise of the powers conferred by S. 110 of the Act. Section 110 of the Act does not confer any power on the State Government to make any Rules. It only confers power on the State Government to constitute Tribunal which the State Government did from time to time by issuing the Notifications as stated above. It appears from the said Notifications that by the first Notification of 17-4-1978, it was provided that the Claims Tribunal presided over by the District Judge shall not adjudicate upon a claim for compensation for an amount which does not exceed Rs. 15000/- and it further provided that the other Claims Tribunals consisting of the Joint Judge or the Assistant Judge, as the case may be, shall not adjudicate upon a claim for compensation for an amount which exceeded Rs. 15,000/- The Claims Tribunal consisting of the District Judge is called Main Tribunal, while the other Tribunals consisting of' the Joint Judge or Assistant Judge are known as Auxiliary Tribunals. Then, by the Notification issued in the year 1980 in the month of May, it was provided that a Claims Tribunal consisting of a Joint Judge or an Assistant Judge, as the case may be, shall adjudicate upon a claim which did not exceed Rs. 25000/-. In short, Rs. 25,000/- were substituted for Rs. 15,000/- in the Notification issued earlier. Therefore, by Notification No. G/8/87/6/MVD-10864619-T, dated 28-1-1987, the pecuniary jurisdiction of the Auxiliary Tribunal was raised to Rs. 1 Lac. By virtue of the said Notification, the Claims Tribunal consisting of the District Judge could not adjudicate upon a claim for compensation for an amount which did not exceed Rs. 1 lac, while the Auxiliary Tribunal consisting of the Joint Judge or the Assistant Judge could not adjudicate upon a claim for compensation for an amount exceeding Rs. 1 Lac.
6. The above notification pertain only to the pecuniary jurisdiction of the Main Tribunal as well as the Auxiliary Tribunal. These Notifications do not have any bearing on the question, so far as R. 311 is concerned. So far as the Rules are concerned, the power is conferred by S. III A of the Act. Section III A of the Act reads as follows :-
"Power of State Government. -- A State Government may make rules for the purpose of carrying into effect the provisions of S. 110 to 110-E, and in particular, such rules may provide for all or say of the following matters, namely:
(a) the form of application for compensation and the particulars it may contain; and the fees, if any, to be paid in respect of such applications;
(b) the procedure to be followed by a Claims Tribunal in holding an inquiry under this Chapter;
(c) the powers vested in a Civil Court which may be exercised by a Claims Tribunal;
(d) the form and the manner in which and the fees (if any) on payment of' which, an appeal may be preferred against an award of a Claims Tribunal; and
(e) any other matter which is to be, or may be, prescribed."
7. It will appear from what has been discussed above that while the Notifications have been issued under S. 110 of the Act constituting Tribunals and raising the pecuniary jurisdiction of Auxiliary Tribunals from time to time, R. 311 has been amended lastly in the month of Aug. 1980. Thereafter, the Rule has never been amended. The procedure to be followed by a Claims Tribunal holding inquiry under Chap. VIII in which Ss. 110 to I WE fall is to be laid down by the Rules and not by any Notifications under S. 110 of the Act.
8. The discussion made above will go to show that the awards passed by the Claims Tribunal in these two applications are required to be set aside and the Tribunal is required to be directed to dispose of the said two Applications on merits In accordance with law in the light of the discussion made in this judgment by following the procedure for trial as laid down in Rules 300 and 310 of the Rules.
9. So far as the other two applications in which the claim did not exceed Rs. 25,000/- concerned, Appeals being First Appeal No. 1407 of 1988 and First Appeal No. 1409 of 1988 were filed before this Court, but the said appeals have been withdrawn without prejudice to the contentions of the appellants in these two matters, looking to the smallness of the amount involved in those petitions and looking to the fact that the said Applications could have been decided on affidavits.
10. As a result of the aforesaid discussion, both these appeals are allowed, the awards passed by the learned Tribunal are hereby set aside and both the applications Being MADCAP. No276 of 1988 and MADCAP. No. 272 of 1983 are remanded to the learned Tribunal for disposal according to law in the light of' the observations made in this judgment by following the procedure for trial of suits as laid down in the C. P.C. The parties to bear their own costs of both these appeals.
11. It appears from the remarks of the learned Tribunal which were called for by this Court that the procedure as laid down in O. 19 of the C. P.C. is followed at least by the Tribunals at Kutch when the claim does not exceed Rs. 1 lac even though it exceeds Rs. 25,000/-. Such procedure if followed by any tribunal is, on the face of it, faulty. In view of this, we direct that the copies of this Judgment may be immediately forwarded to all the Claims Tribunals in the State with spare Copies for Auxiliary Tribunals so that the Tribunals in the State may follow the correct procedure as laid down in this judgment.
12. Appeals allowed.