Orissa High Court
Braja Kishore Sahu vs Param Jyoti Sinha And Anr. on 1 November, 1989
Equivalent citations: I(1990)ACC601, 1991ACJ185
JUDGMENT K.P. Mohapatra, J.
1. The appellant has challenged the order of compromise dated 6.12.1987 passed by the Second Motor Accidents Claims Tribunal (referred to as 'the Tribunal') making an award of Rs. 12,000/- as compensation in favour of the appellant.
2. Facts may be stated in brief. The appellant was aged 15 years studying in the High School. He was involved in an accident which took place on 16.5.1985 on the road which runs between Paradip and Cuttack near village Barti caused by a motor car belonging to respondent No. 1 and insured with respondent No. 2. As a result of the accident, he suffered injuries and underwent prolonged treatment as an indoor patient at the S.C.B. Medical College Hospital, Cuttack. He filed the petition before the Tribunal under Section 110-A of the Motor Vehicles Act, (referred to as 'the Act') through his father guardian claiming compensation of a sum of Rs. 40,000/- for mental shock, loss of study, medical expenses and loss of all hopes for leading a normal life. The respondents filed written statements denying the appellant's claim. In due course the case was posted for hearing to 1.12.1987. On that day the parties were not ready and the counsel for the appellant, Mr. S.K. Mohanty, applied for adjournment which was allowed and the hearing of the case was adjourned to 25.3.1988. On the same day a petition for compromise was filed before the Tribunal the text of which is quoted below:
We the above applicant(s) and above-named insurance company have arrived at compromise to settle the above-mentioned claim petition at Rs. 12,000/- (Rupees twelve thousand) only in full satisfaction of the claim. No coercion or force or temptation has been made to any of the parties. We request the Hon'ble Tribunal to record compromise today itself and pass an award accordingly. We further state that the insurance company above-named is willing to issue a cheque for the said amount within two months of the passing of the award.
Sd/-
Signature of the applicant Sd/-
Signature of the insurer Sd/-
Sarat Kr. Mohanty [Signature of the advocate for the applicant(s)] Sd/-
[Signature of the advocate for the insurer]
3. It will appear from the compromise petition that it was signed by the appellant's counsel Mr. S.K. Mohanty, the insurer and its advocate. It was not signed by the appellant nor by his father guardian. On 5.12.1987 Mr. Mohanty filed a petition stating as follows:
(1) That the petitioner claimed Rs. 40,000/-in Col. 21 of the claim application.
(2) That the petitioner wants to reduce the claim amount to Rs. 15,000/- which maybe inserted in Col. 21 of the claim application.
PRAYER The petitioner prays that your honour would be pleased to allow the petition.
And for this act of kindness the petitioner as is duty bound shall ever pray.
PROPOSED AMENDMENT In Col. 21 Rs. 40,000/- may be deleted and in its place Rs. 15,000/- may be inserted.
4. The petition was not signed by the appellant nor by his father guardian. It was placed before the Tribunal on 6.12.1987 although as earlier stated the case was posted for hearing to 25.3.1988. The Tribunal passed the following order:
Misc. Case No. 252 of 1985The counsel for the petitioner filed a petition for reducing the claim amount to Rs. 15,000/-. Heard. Prayer is allowed.
Record is put up today consequent upon a compromise arrived at in the Lok Adalat and duly signed by the parties and their counsel. The terms being read over and explained, are admitted to be correct by them. The compromise is recorded and O.P. Oriental Insurance Company Ltd. is directed to pay Rs. 12,000/- to the petitioner Braja Kishore Sahu within two months hence. The compensation when realised be kept in shape of unencumbrable fixed deposit for a term of 5 years in a scheduled bank for the benefit of interest.
Sd/- Illegible 6.12.1987 Second Motor Accidents Claims Tribunal
5. On 17.6.1988 through another advocate the appellant filed a petition stating therein that without his knowledge, his advocate Mr. Mohanty had entered into a compromise with respondent No. 2 in the Lok Adalat held in the month of January, 1988. He did not receive any notice from the Lok Adalat nor any letter from Mr. Mohanty with regard to the compromise. As he had spent more than Rs. 20,000/- for the treatment of the injured, it was not possible on his part to compromise the claim case for a sum of Rs. 12,000/- only. Therefore, he prayed for setting aside the award dated 6.12.1987 on the basis of the compromise in the Lok Adalat and prayed for disposal of the case on merits. On the same day, he filed another petition for amendment of the claim petition for enhancement of the claim to Rs. 2,50,000/-. The first petition referred to above was contested and was disposed of by order dated 11.10.1988 by the Tribunal. The Tribunal rejected the petition on the ground that Mr. Mohanty, the appellant's advocate, entered into the compromise in the pre-Lok Adalat conciliation apparently on the instructions of his client. The appeal was filed thereafter challenging the award dated 6.12.1987 after a delay of 254 days with a petition for condonation of limitation on the ground that the compromise was made without the appellant's knowledge and only after he received notice to take delivery of the cheque for Rs. 12,000/-, he came to know of the award. He filed a petition for setting aside the award which was disposed of on 14.10.1988 and after obtaining a certified copy on 10.11.1988, he presented the appeal on 15.11.1988. This court directed by order dated 30.4.1988 that the question of limitation shall be decided at the time of admission. With the consent of both parties, however, the matter was heard in full at the admission stage for final disposal. It is, therefore, necessary first to decide the question of limitation.
6. It will appear from the records of the claim case that on 1.12.1987 hearing of the case was adjourned to 25.3.1988. In the meanwhile, in the early part of December, there was a conciliation proceeding prior to the holding of the Lok Adalat on 6.12.1987. On 6.12.1987 the impugned award was passed. Thereafter, the case was never taken up for hearing on the date fixed. On 9.2.1988 an account payee cheque for Rs. 12,000/- was deposited before the Tribunal and notice was directed to be issued to the claimant to appear and receive the same on 1.3.1988. From 1.3.1988 till 15.5.1988 the presiding officer of the Tribunal had not joined the post and so the case stood adjourned from time to time. On 17.6.1988 the petition for setting aside the award was heard and the same was rejected on 14.10.1988. Thereafter, on obtaining the certified copy, the appeal was filed. The appellant who was injured in the accident was a minor. He was represented by his father guardian. No notice appears to have been issued to the appellant before the Lok Adalat to appear for conciliation and compromise. In view of these facts, I am satisfied that there was sufficient cause for the appellant to prefer the appeal beyond the period of limitation and so limitation is condoned.
7. At the time of hearing of the appeal, as would appear from the order dated 7.8.1989, Mr. Mohanty was called to the court and the following facts were ascertained from him.
(1) The Lok Adalat was held on 6.12.1987 but the decision for the settlement took place on the pre-Lok Adalat day, namely, 1.12.1987.
(2) The Legal Aid and Advice Board Office gave a notice directly to the claimant to take part in the Lok Adalat. The notice was not routed through the counsel. The counsel also gave a letter to the claimant to participate in the Lok Adalat.
(3) The claimant was not present either on the pre-Lok Adalat day on 1.12.1987 or on the day the Lok Adalat was held on 6.12.1987.
(4) He entered into the settlement on the pre-Lok Adalat day and filed the compromise petition duly signed by him. The amount of claim was settled at Rs. 12,000/-.
(5) The amount of Rs. 12,000/- which was settled was considered adequate not only by him but by the learned Judges who participated on the pre-Lok Adalat day.
(6) Before the pre-Lok Adalat day on 1.12.1987 the claimant was not informed of the proposed settlement and the amount settled.
8. It will appear from the above that neither on 1.12.1987 nor on 6.12.1987 the appellant or his father guardian was present before the Tribunal. Therefore, neither of them was a consenting party to the compromise. If at all any reconciliation or compromise took place, it was not even with their tacit consent. They were not even aware of the petition for amendment of the claim petition so as to reduce the claim from Rs. 40,000/- to Rs. 15,000/- and of the pre-Lok Adalat reconciliation, as well as the compromise before the Tribunal. The observations in the impugned order that the compromise petition was signed by the parties and they admitted the terms of the compromise were not wholly correct.
9. But since Mr. Mohanty seems to have taken part in the pre-Lok Adalat reconciliation, signed the petition of compromise and also filed the petition for amendment, it is now for consideration if he had been duly authorised by the appellant through his father guardian not only to enter into the compromise but also to admit the same including the terms thereof. In order to find out the character and extent of his authority, it is necessary to refer to the relevant provisions of the General Rules and Circular Orders of the High Court of Judicature, Orissa (Civil), Vol. 1 (hereinafter referred to as the 'G.R. & CO.') with regard to the authority of counsel for entering into and admitting a compromise on behalf of their clients. Rule 478, Chapter IV, at page 131, prescribes the form of the vakalatnama as follows:
FORM OF VAKALATNAMA OR MUKHTARNAMA Cause title Know all men by these presents, that by this vakalatnama/mukhtarnama I/we, plaintiff/defendant/applicant/respondent/petitioner/opposite party in the aforesaid suit/appeal case do hereby appoint and retain... Advocate(s)/Pleader(s)/Mukhtar(s) to prosecute or defend the same and all proceedings that maybe taken in respect of any application connected with the same, or any decree or any order passed thereon including all applications for return of documents or receipt of any money that may be payable to me/us in the said case and also in applications for review and in appeals.
Dated the... 19 Signature of executant(s)
(b) Where the party cannot sign his or her name the vakalatnama or mukhtarnama must be endorsed as follows:
I, A.B., do hereby appoint CD. Pleader/Advocate/Mukhtar, to act for me in the above-named cause, in token whereof, I have affixed my left thumb impression in the presence of E.F. (Left thumb impression) and E.F. do hereby attest the above thumb impression as having been affixed in my presence by A.B. who is known to me.
(Signature) Rule 485 in the same Chapter at page 133 lays down as follows:
No court shall accept admission of a compromise by a pleader/advocate or record a compromise filed by a pleader or advocate in a pending case, unless a special vakalatnama is filed by such pleader or advocate for the said purpose.
Consideration of both the rules and the text of the vakalatnama would show that a special vakalatnama is necessary to accept admission of a compromise by a counsel. Although the G.R. & CO. framed under Article 227(2)(b) of the Constitution of India are meant to be strictly followed by civil courts, yet the Tribunals created under Section 110 of the Act exercising civil/judicial powers are bound to be governed by the provisions thereof by analogy. Mr. Mohanty, according to the vakalatnama filed before the Tribunal, had no authority to enter into the compromise on behalf of the appellant, who at best had been authorised to admit any compromise lawfully entered in the claim case. Otherwise also no specific authority was given to him by the appellant through his father guardian to enter into or admit the compromise on their behalf. It is, therefore, to be considered if a compromise had been lawfully entered into by the parties which Mr. Mohanty had authority to admit.
10. Order 23, Rule 3 of the Code of Civil Procedure deals with the procedure for compromise of a suit. According to it, one of the essential requirements which was introduced by Civil Procedure Code (Amendment) Act, 1976 with effect from 1.2.1977 was that the agreement or compromise must be in writing and signed by the parties. Before recording the compromise, the court must reach the satisfaction that the suit has been adjusted wholly or in part by any lawful agreement or compromise. According to Order 32, Rule 7 (1) and (1-A), Civil Procedure Code, a next friend or guardian cannot, without the leave of the court expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as such. Leave of the court shall have to be obtained by making an application accompanied by an affidavit by the next friend or the guardian with a certificate of the counsel to the effect that the agreement or the compromise proposed is, in his opinion, for the benefit of the minor. In the claim case, the father guardian of the claimant who was a minor did not at all sign nor was a party to the compromise. So the question of his applying for leave of the court with affidavit to enter into the compromise on behalf of the minor did not at all arise. Mr. Mohanty also did not append a certificate to the effect that in his opinion, the compromise was for the benefit of the minor. Along with the aforesaid provisions in the Civil Procedure Code, it is necessary to notice Rule 20 of the Orissa Motor Vehicles (Accidents Claims Tribunals) Rules, 1960, according to which Order 23, rules 1 to 3, Civil Procedure Code are applicable to proceedings before the Tribunal. It is, therefore, as clear as daylight that all agreements and compromises before the Tribunal should conform to Order 23, Rule 3 and by analogy to the provisions of Order 32, Rule 7, Civil Procedure Code for better safeguard of the interest of minor claimants. It is needless to say that in the present case the provisions of Order 23, Rule 3 were not complied with, because the compromise petition was not signed by the father guardian of the appellant, nor were the provisions of Order 32, Rule 7, Civil Procedure Code followed. in this connection, reference is necessary to one of the latest decisions reported in Gurpreet Singh v. Chatur Bhuj Goel AIR 1988 SC 400. It was held therein ?nat under Order 23, Rule 3, Civil Procedure Code, as it now stands, when a claim in suit has been adjusted wholly or in part by any lawful agreement or compromise, the compromise must be in writing and signed by the parties and there must be a completed agreement between them. To constitute an adjustment, the agreement or compromise must itself be capable of being embodied in a decree. When the parties enter into a compromise during the hearing of the suit or appeal, there is no reason why the requirement that the compromise should be reduced in writing in the form of an instrument signed by the parties should be dispensed with. The court must, therefore, insist upon the parties to reduce the terms into writing. [Also see Kagarin Raghuram v. Dr. Narasipalla Vundara AIR 1983 AP 32]. In Jadumani Naik v. Jyotsna Naik AIR 1988 Orissa 38, this court interpreted Order 32, Rule 7 (1) and (1-A), Civil Procedure Code and held that unless application on behalf of a minor accompanied by affidavit is filed by the guardian to the effect that the compromise was in his opinion for the minor's benefit, permission granted by the court for compromise was invalid.
11. In view of the aforesaid discussion, the impugned order of award on the basis of a compromise which was not in accordance with law cannot be upheld.
12. In the result, the appeal is allowed and the impugned award dated 6.12.1987 and the order dated 14.10.1988 are set aside. The claim case is remanded to the Tribunal for disposal in accordance with law. Parties are hereby directed to appear on 10.11.1989 before it to receive directions. No costs. The claim case record be sent back forthwith.