Gauhati High Court
Smt. Milan Rani Saha vs New India Assurance Company Ltd., ... on 6 April, 2000
Equivalent citations: II(2000)ACC512, 2001ACJ103, AIR 2000 GAUHATI 136, 2000 A I H C 3531, (2001) 1 CIVLJ 677, (2001) 1 ACJ 103, (2000) 3 TAC 615, (2000) 2 GAU LR 623, (2000) 2 ACC 512, (2001) 1 RECCIVR 273
ORDER Chowdhury, J.
1. The matter has come to this Court on a reference made under Chapter VII of the Gauhati High Court Rules, basically to resolve the views expressed by two Division Benches of this Court relating to judicial review under Articles 226 and 227 of the Constitution of India pertaining to adjudication upon claims for compensation in respect of adjudication under Chapter XII of the Motor Vehicle Act, 1988. The two conflicting views mentioned above which shall be discussed hereinbelow, have surfaced in the following circumstances.
2. A Full Bench of this Court in United India Insurance Co. Ltd. v. Member, Motor Accident Claims Tribunal, Lakhimpur reported In (1992) 2 Gauhati L. R. 391, (AIR 1993 Gauhati 28), was called upon to reconsider a Division Bench decision of this Court In Hemendra Dutta Choudhury v. Arun Kumar Bordoloi, reported in (1987) 2 Gauhati LR 450. In Hemendra Dutta Choudhury (supra), the Division Bench of this Court was to consider the maintainability of a joint appeal preferred by the insurer and the owner of a vehicle. It was held that where the entire compensation amount is directed to be paid by the insurer, the insurer alone is the person aggrieved and entitled to prefer an appeal under Section 100D of the M. V. Act, 1939 and that the owner of the vehicle is not a person aggrieved and is not entitled to maintain an appeal; but the joining of the owner of the vehicle as a co-appellant would not render the appeal preferred by the Insurance Company (Insurer) as not maintainable. It was also held that the restrictions contained in Section 96 (2) of the M.V. Act, 1939 operates only in regard to defences available to the insurer in the Motor Accident Claims Tribunal, hereinafter referred to as the Tribunal, and do not apply to the grounds available to the insurer in the appellate forum. The Full Bench deliberated upon the matter and held that the insurer is bound by Section 149 of the MV Act, 1988 (old -- 96 (2)) in the appellate forum also and the right of appeal is restricted to the conditions enumerated in Section 149 of the Act, 1988 (Sec. 96 (2) of the old Act, 1939). The Court in United India Insurance Co., (AIR 1993 Gauhati 28) (supra), held that Section 149 of the Act, 1988 is concerned with the duty of the in-
surer to satisfy the Judgment and award against persons insured in respect of third party risk. Under the common law, an insurer has no right to be made a party to the action by the injured person against the insured. A right is created in favour of the insurer under Section 96 (2) (corresponding to Section 149 of the new Act, 1988) of the Act, 1939. It is a right created by Statute and its content necessarily depends upon the provisions of the Statute. The Full Court accordingly reversed the decision in Hemendra Dutta Choudhury, (1987 (2) Gauhati LR 450) (supra) and held that the insurer is bound by Section 96 (2) (Section 149 of the Act, 1988) in the appellate forum also and the right of appeal is restricted to raising contentions enumerated in Section 149 of the Act unless the Tribunal has passed an order under Section 170 of the Act or unless the insurer has reserved a right in the policy a right to contest the claim on behalf of the insured. The correctness of the aforesaid Full Bench decision is not in dispute. Nor is there any reference to that extent. The United India Insurance Co. (supra) is holding the ground so far as good law and the ratio of the aforesaid decision also finds support in the decision of the Supreme Court in Shankaryya v. United India Insurance Co. Ltd. reported in (1998) 3 SCC 140: (AIR 1998 SC 2968). In the above mentioned case, the Supreme Court held that the Insurance Company when impleaded as a party by the Court, can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in Section 170 of the Act, 1988 are found to be satisfied and for that purpose the Insurance Company has to obtain a reasoned order in writing from the Tribunal. Unless the said procedure is adhered to, the Insurance Company cannot take a wider defence other than the Statutory defence. Impleadment of the Insurance Company will not broaden the defence of the Insurance Company in the absence of a specific order from the Court allowing the Insurance Company to avail of larger defence on merits on being satisfied as to the existence of the conditions set out under Section 170 of the Act, 1988. The issue for our consideration in the present reference is not the correctness of the United India Insurance Co., (AIR 1993 Gauhati 28) (supra). The controversy is limited to the fall-out of the decision in the context of Articles 226 and 227 of the Constitution of India.
In Laxmi Das v. National Insurance Co. Ltd. (Writ Appeal No. 26/94) disposed of by this Court on 2-6-95, is a decision passed by a Division Bench of this Court in two writ appeals, viz. Writ Appeals Nos. 26/94 and 27/94 (Sipra Sana v. National Insurance Co. Ltd.). The claimants in the claim case, were the appellants in the writ appeals who were aggrieved by the judgment and order of the learned Single Judge reducing the compensation awarded by the Tribunal. The Motor Accident Claims Tribunal, West Tripura, Agartala, by its award dated 26-4-93, in MAC Cases Nos. 73 and 74 of 1991, awarded Rs. 2,42,000/- as compensation with interest at the rate of 12% per annum from the date of filing of the claim petition. The Insurance Company assailed the aforesaid award in an application under Article 226 of the Constitution of India. The learned Single Judge by its judgment and order dated 11-3-94, reduced the amount of compensation to Rs. 2,05,000/-, but maintained the rate of interest. The claimants on appeal, assailed the aforesaid judgment and order of the learned Single Judge. The Division Bench decided the case in favour of the claimants and allowed the appeals on the ground that the Statute itself provided for certain restrictions and, therefore, those cannot be allowed to be circumvented by invoking the extra-ordinary Jurisdiction under Article 226 of the Constitution. Similarly, the Division Bench (D/B in short) also mentioning about Article 227 of the Constitution of India, referred to the decision of the Supreme Court in Mohammad Yunus v. Md. Mustaqim, reported in AIR 1984 SC 38. The D/B judgment did not say anything to that effect, but we shall assume that the D/B was not inclined to take aid of Article 227 of the Constitution of India. The D/B accordingly set aside the judgment and order of the learned Single Judge and quashing the same held that the jurisdiction under Article 226 of the Constitution could not be invoked.
2. Mr. Sankar Deb, the learned senior counsel appearing on behalf of the claimants/appellants, referred to a decision of this Court in the National Insurance Co. Ltd. v. Smt. Kakali Bhowmik reported in (1996) 2 Gauhati LJ 655, wherein a contrary view is expressed. The D/B in the aforementioned decision, was dealing with an appeal by the Insurance Company, which it remanded to the trial Court. The Division Bench in deciding that appeal, also observed that the power of superintendence conferred under Article 227 of the Constitution of India cast a duty on the High Courts to keep all the Courts and Tribunals within the bounds of their authority and to see that they discharged their duties entrusted to them by law by following the procedures prescribed by law. The above power can be exercised suo motu in proper cases in exercise of that power. The Court accordingly interfered and remanded the appeal to the Claims Tribunal. The Division Bench has had to resort to Article 227 of the Constitution undoubtedly keeping in mind the Full Bench decision of this Court in United India Insurance Co., (AIR 1993 Gauhati 28) (supra). The moot question now is as to whether a Judicial review under Article 226 /227 is at all permissible at the instance of the insurer on the grounds other than those mentioned under Section 149 of the MV Act, 1988 in view of the Full Bench decision in the United India Insurance Co. (supra) to the effect that the right of appeal by an insurer is restricted to raising the contentions enumerated in Section 149 of the Act, 1988. There was a lengthy debate on it.
Mr. Sankar Deb, learned senior counsel assisted by Shri Shamik Deb, appearing on behalf of the claimants/appellants argued the case at length. The learned senior counsel basically propped upon the Full Bench decision of this Court in United India Insurance Co., (AIR 1993 Gauhati 28) (supra). Mr. Deb, the learned senior counsel submitted that the claims for compensation in respect of accidents Involving death of or bodily injury to persons arising out of use of a motor vehicle or damages to a third party so arising or both, are adjudicated upon by the Motor Accident Claims Tribunal constituted under the Motor Vehicles Act. The rights and remedies are provided by the Statute and on the face of the Statutory remedy, no other remedies including judicial review, is permissible. In support of his contention, Mr. Deb referred to the following decisions :
(1) AIR 1960 SC 137, Satyanarayan Laxminaryan Hegde v. Mallikarjun Bhavanappa;
(2)AIR 1935 PC 5, Ohene Moore v. Akesseh Tayee:
(3) 1998 (1) Gauhati LT 237, New India Assurance Co. Ltd. v. Sabitri Rabidas;
(4) (1992) 2 Gauhati LR 391, (AIR 1993 Gauhati 8) (FB), United India Insurance Co.
Ltd. v. Member, Motor Accident Claims Tribuna, Lakhimpur;
(5) (1995) 6 SCC 576, Laxmikant Revchand Bhojwani v. Pratap Singh Mohan Singh Pardeshi;
(6) (1996) 3 Gauhati LR 330, National Insurance Co. Ltd. v. Smt. Kakali Bhowmik;
(7) AIR 1962 SC 1621, Smt. Ujjam Bai v. State of U.P.:
(8) 1997 (3) Gauhati LT 433, M/s. Octavious Steel & Co. Ltd. v. G. C. Gogol, his legal heirs Smt. Nili Prava Gogol;
(9) AIR 1954 SC 215, Waryam Singh v. Amamath;
(10) AIR 1953 SC 58, D.N. Banerjee v. P. R. Mukherjee D. K. Biswas, learned counsel appearing on behalf of the New India Assurance Co. Ltd. (respondent) and Mr. D. R. Choudhury. learned counsel appearing on behalf of the National Insurance Co. Ltd. (respondent), submitted that Statutory provisions cannot hold up judicial review. The learned counsel in support of their respective cases also cited a number of decisions, some of which are mentioned below.
1991) 3 SCC 141: (AIR 1991 SC 1494). Mani Nariman Daruwala alias Bharucha (deceased) through L. Rs. v. Phiroz N. Bhatena (2) 2000 AIR SCW 690, (AIR 2000 SC 931), Mohan Amba Prasad Agnihotri v. Bhaskar Balwant Aher (dead) through LRs;
(3) (1996) 4 SCC 362, U.P. State Road Transport Corporation v. Trilok Chandra:
(4) (1998) 8 SCC 310: (AIR 1999 SC 519), Baby v. Travancore Devaswom Board;
(5) (1999) 2 SCC 143: (AIR 1999 SC 413), Savita Chemicals (P) Ltd. v. Dyes & Chemical Worker's Union;
(6) AIR 1987 SC 1645, Sukhbir Narayan (dead) by LRs v. Deputy Director of Consolidation.
3. The Full Bench decision in United India Insurance Co. Ltd., (AIR 1993 Gauhati 8) (supra) is a decision relating to the maintainability of a Statutory appeal under Section 173 of the MV Act, 1988. Section 173 of the Act, 1988 entitles the "aggrieved person" to prefer an appeal. An appeal is distinct from judicial review as enjoined under Articles226 /227 of the Constitution. An appeal is a continuation of the original proceeding. An appeal can be preferred to a superior Court, Tribunal or authority to reverse, vary, modify or set aside an order, determination, decision or award of an inferior Court, Tribunal or authority in the heirarchy on the ground the order/determination/decision is erroneous or otherwise requires to be corrected as a matter of law. A right of appeal is a creature of the Statute. It is not an ordinary practice or procedure, it is a legislative product. There is no natural or inherent right to appeal unless such a right is conferred or created by the Statute. Neither the superior Court nor the inferior Court or Tribunal can create or take-away such a right. The area as well as extent of challenge to the order or judgment is also defined and delineated by the legislature and the challenge is also to be confined to the extent indicated in the Statute. How and in what manner the legislature demarcate the contour or limit the scope and extent, will differ from Statute to Statute. Judicial F view is an integral part of our Constitutional system and the power is vested on the High Courts and the Supreme Court to uphold the Constitution and the rule of law.
Judicial Review comprises mainly of three aspects, judicial review of administrative action; judicial review of legislative action and judicial review of judicial decision. Judicial Review forms the basic structure of our Constitutional system. Articles 32, 226 and 227 are the tools of judicial review. Judicial Review is a mechanism by which the Constitutional Courts exercise its Constitutional jurisdiction including the jurisdiction of superintendence over the proceedings before the inferior Courts, Tribunal, authority or other persons who are charged with the public acts and duties. English Law originally derived its jurisdiction from the common law and the jurisdiction was exercised by issue of prerogative writs of mandamus, Certiorari, Quo Warranto, Prohibition, etc. Presently, there also, the jurisdiction is conferred and regulated by the Statutes and rules of the Court. The power of Judicial review in India directly emanates from the Constitution itself. Judicial review is different from an ordinary appeal. Nor can it be used as a cloak for an appeal in disguise. It is mostly confined to the decision making process rather than the decision. The purpose of judicial review is to ensure that an individual is given fair treatment by the concerned authority and is given justice. It is mainly concerned where the decision making authority exceeds its power and commits error of law or grave injustice of acts in violation of all cannons of justice and fair play or when it acts in abuse of its powers. The grounds of judicial review are also subjected to control. A very wide and comprehensive power is conferred on all the High Courts by Article 226 of the Constitution of India in relation to exercise of jurisdiction to issue to any person or authority including in appropriate cases, any Government within those territories, directions, orders or writs including the writs in the nature of Habeas corpus, Quo Warranto, Certiorari, Mandamus, Prohibition or any of them for enforcement of any of the rights conferred by Part III of the Constitution or for any other purpose(s). There are only two limitations imposed upon exercise of this power under Article 226 by the High Courts, viz. (a) the power is to be exercised "throughout the territories in relation to which it exercises jurisdiction"; and (b) that the person or authority to whom the High Court is empowered to issue the writs "must be within those territories". K. Subba Rao, J. as he then was, in Dwarka Nath v. Income Tax Officer, reported in AIR 1966 SC 81, thus made the following observations :
"This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression 'nature', for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions orders or writs other than the prerogative writs. It enable the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this Country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years "in a comparatively small country like England with a unitary form of government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the Article itself. To say this its not to say that the High Courts can function arbitrarily under this Article. Some limitations are implicit in the article and others may be evolved to direct the article through defined channels. This interpretation has been accepted by this Court in T. C. Basappa v. Nagappa, (1955) 1 SCR 250, AIR 1954 SC 440 and Irani v. State of Madras, (1962) 2 SCR 169, AIR 1961 SC 1731.
The above decision has been rehearsed and relied upon in U.P. State Co-operative Land Development Bank Ltd. v. Chandrabhan Dubey reported in (1999) 1 SCC 741, (AIR 1999 SC 753), and in Mewa Singh v. Shiromani Gurdwara Prabandhak Committee, reported in (1999) 2 SCC 60, (AIR 1999 SC 688). In Special Reference No. 1/64 (in Keshav Singh, Re), reported in AIR 1965 SC 745, Chief Justice Gajendragadkar stated as follows :
"If the power of the High Courts under Article 226 and the authority of this Court under Article 32 are not subject to any exceptions, then it would be futile to contend that a citizen cannot move the High Courts or this Court to invoke their jurisdiction even in cases where his fundamental rights have been violated. The existence of judicial power in that behalf must necessarily and inevitably postulate the existence of a right in the citizen to move the Court in that behalf, otherwise the power conferred on the High Courts and this Court would be rendered virtually meaningless. Let it not be forgotten that the judicial power conferred on the High Courts and this Court is meant for the protection of citizens' fundamental rights, and so, in the existence of the said judicial power itself is necessarily involved the right of the citizen to appeal to the said power in a proper case."
In L. Chandra Kumar v. Union of India, reported in (1997) 3 SCC 261, (AIR 1997 SC 1125), the Supreme Court also rehearsed the same view and re-stated that the power of judicial review vested in the High Courts under Article 226 of the Constitution and in the Supreme Court under Article 32 of the Constitution, is an integral and essential feature of the Constitution constituting part of the basic structure of the Constitution. In the aforesaid case of L. Chandra Kumar (supra), it was also observed :
"We also hold that the power vested in the High Courts to exercise judicial superintendence over the decisions of all Courts and tribunals within their respective jurisdictions is also part of the basic structure of the Constitution. This is because a situation where the High Courts are divested of all other judicial functions apart from that of Constitutional interpretation, is equally to be avoided."
4. Whether an application under Article 226 of the Constitution is to be entertained or not, is to be left to the discretion of the Court. The Constitution has imposed no limitation within its jurisdiction. Nor can the jurisdiction be limited or laid by a Statute. It is an all embracing Constitutional power. The restrictions imposed on a High Court in entertaining writ petitions, are self-imposed limitations. The nature of the power under Article 226 and for that matter Article 227 of the Constitution are wider in content. The powers are mainly used for rendering justice to the parties. Article 227 of the Constitution of India similarly confers powers upon the High Courts of superintendence overall Courts and Tribunals throughout the territory in relation to which it exercises jurisdiction. The jurisdiction is not confined only to the extent of administrative jurisdiction. The powers of the High Courts under Article 226 of the Constitution cannot be taken-away or barred by any legislation; nor can it be barred by any Statute by providing that a decision of an inferior Court of Tribunal shall be final, AIR 1979 SC I.C. Singh v.-- Singh, AIR 1968 SC 1481. State of Gujarat v. V. V. Vaghela. A duty and responsibility is cast on the High Court and is invested with the power of general superintendence to keep the Courts and Tribunals within its territorial jurisdiction, within the bounds of their authority and to see that the authorities discharged their duties in a legal manner. The High Court can interfere in cases of erroneous exercise of Jurisdiction, refusal to exercise jurisdiction, error of law on the face of materials on records, violation of principles of natural justice, arbitrary or capricious exercise of power/authority/discretion, perversity and so on and so forth. It is a discretionary and extra-ordinary power conferred on the High Courts that is to be used as and when called for. Alternative relief/remedy may be a ground for refusal to grant relief. But in a view case, to correct manifest injustice where basic principles of natural justice has been violated, alternative remedy/relief cannot and shall not stand as a bar for grant of relief. While exercising the jurisdiction/discretion, the Court will no doubt exercise judicial discretion keeping in mind the judicial norms.
The High Court's powers under Article 227 of the Constitution though initially shown to be restricted only to the cases of grave dereliction of duties and gross violation, to be used/exercised most sparingly in cases of grave injustice, but there is a shift of the paradigm. The trend is now liberalised. It, however, cannot be used as an appellate or revisional power. The High Court in exercise of its power will not substitute its own judgment to that of an Inferior Court on a question of fact or interfere with the legitimate exercise of powers/jurisdiction by the inferior Court, unless it is arbitrary, capricious or there is error of finding of jurisdictional fact Ref. Achutananda Baidya v. Prafulla Kumar Gayen, (1997) 5 SCC 76, (AIR 1997 SC 2077). The power under Article 227 of the Constitution is wider than that of Section 115 CPC and may be used even when Section 115 CPC is not applicable. The powers of Judicial superintendence under Article 226/ 227 of the Constitution is not limited to technical rules. The power under Article 227 of the Constitution may even be exercised suo motu by the Court.
5. The letter and spirit of Articles 226/227 admit of no limitation on the power of the High Courts for exercise of the power of judicial review and as a matter of fact, no decision is required to state that the award or decision of a Motor Accident Claims Tribunal is not immune from judicial review.
Articles 32 and 226 of the Constitution forms the core of the Constitution. Constitution is not to be read as a Statute. It is "fon et origo" -- the main spring of all the Statutes. A Constitutional provision is to be interpreted broadly and generously keeping in mind the Ideals of the Constitution. The Constitution sets-out a goal to be reached. It does not reflect the legal policy alone. It echoes the ideals and longings of the makers of the Constitution and the aspiration of "we the people". The very words speak of the republican and the democratic attributes of the polity that all powers emanate from the people. The Constitution is not to be read merely as a lawyer's law.
In a decision making process, the Courts are concerned with the legal and Constitutional policies which undoubtedly take note of the philosophy of legal policy. The primary object of the legal policy is to do justice. The under lying basis of legal policy is to cause/do welfare of the community as a whole. "Selus popull suprema lex" -- law should serve the public interest. In adopting a construction of a Statute, endeavour is to be made to avoid that construction which is in any way adverse to the public interest. Law should afford equal treatment for all and should show equal concern and respect to all. In the end, the primary aim of legal policy is to do justice and the Courts presume that the Parliament does not intend injustice.
We have read and re-read the judgment of the D/B of this Court in Laxmi Das (supra) wherein this Court interfered in the exercise of discretion and jurisdiction of the learned Single Judge in exercise of the jurisdiction under Article 226 of the Constitution of India. In the aforesaid case, the Court basically was concerned with the exercise of jurisdiction by the learned Single Judge. Admittedly, there was a marginal variation of the amount of the compensation awarded by the learned Single Judge. In that context, the learned Division Bench while judging the exercise of the powers under Article 226 of the Constitution, interfered with the decision making process of the learned Single Judge. The above aspect/fact of the case cannot be read as a decision that in no circumstances, there can be no judicial review under Articles 226/227 of the Constitution of India in respect of adjudication of claims for compensation under the M. V. Act.
6. The Motor Accident Claims Tribunal is a creature of the Statute and wherever/ whenever it acts in violation of the Statute, It will be amenable to the writ jurisdiction of the High Court, U.P. State Co-operative Land Dev. Bank Ltd.. (AIR 1999 SC 753) (supra) and Mewa Singh, (AIR 1999 SC 688) (supra). In a recent judgment of the Supreme Court in C.A. 2087/2000 arising out of --L.P. (C) No. 8479/99, delivered in 14th March, 2000, United India Insurance Co. Ltd. v. Rajendra Singh reported in (2000) 2 SCALE 343, (AIR 2000 SC 1165), the Supreme Court expressed its distress also against the order/action of the High Court before whom the Insurance Company approached for annulling the Award and the High Court rejected the same. In that context, the Supreme Court made the following observation :
"For a High Court In India to say that it has no power even to consider the contention that the awards secured are the by products of stark fraud played on a Tribunal, the plenary power conferred on the High Court by the Constitution may become a mirage and people's faith in the efficacy of the High Courts would corrode. We would have appreciated if the Tribunal or at least the High Court had considered the plea and found them unsustainable on merits, if they are merit less. But when the Courts pre-empted the Insurance Company by slamming the doors against them this Court has to step in and salvage the situation."
In our considered opinion, judicial review against such an award is permissible and it will be for the Court alone to exercise the discretion judging the fact situation in the light of the established principles of law and practice.
In view of the above facts and circumstances as well as the discussions, we answer the reference in the affirmative and hold that an application for judicial review under Articles 226/227 of the Constitution of India is maintainable against an award of the Tribunal under the M, V. Act at the instance of the insurer on the grounds other than those mentioned under Section 149 of the M. V. Act, 1988.
Consequent upon our answer to this reference, the matter is now to be sent back to the Division Bench to proceed with the adjudication of the appeal in the light of the answer to this reference.