Patna High Court
K.P. Verma vs State Of Bihar And Anr. on 10 March, 1989
Equivalent citations: 1990ACJ32, 1990(38)BLJR197
JUDGMENT
P.S. Mishra and B.N. Sinha, JJ.
1. The petitioner, an Advocate of this court, has brought a voxpopuli alleging that the respondents have failed to establish Claims Tribunals as contemplated by Section 110 of the Motor Vehicles Act.
Section 110 (1) of the Act states:
A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereinafter referred to as the 'Claims Tribunals') for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both:
Provided that where such claim includes a claim for compensation in respect of damage to property exceeding rupees two thousand, the claimant may, at his option, refer the claim to a civil court for adjudication, and where a reference is so made, the Claims Tribunal shall have no jurisdiction to entertain any question relating to such claim.
By Act 47 of 1982, an explanation has been put as a part of the said provision stating:
For the removal of doubts, it is hereby declared that the expression 'claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles' includes claims for compensation under Section 92-A. Sub-section (2) of Section 110 states:
A Claims Tribunal shall consist of such number of members as the State Government may think fit to appoint and where it consists of two or more members, one of them shall be appointed as the Chairman thereof.
As to who may be eligible for such appointment is prescribed in Sub-section (3) of the said section. It states that, a person shall not be qualified for appointment as a member of a Claims Tribunal unless he is, or has been, a Judge of a High Court, or is, or has been, a District Judge, or is qualified for appointment as a Judge of the High Court.
Sub-section (4) of the said section states that the State Government may, by general or special order, regulate the distribution of business where two or more Claims Tribunals are constituted for any area.
2. This case was taken up for hearing at the admission stage on 3.10.1988. The learned Government Advocate, who appeared for the State, prayed for time for obtaining instruction and accordingly a Bench of this court adjourned the case until Puja Holidays. When the case was listed for admission again on 3.11.1988, this court ordered:
Heard learned counsel for the petitioner and learned Government Advocate for the State of Bihar.
Since no instruction is available, it is not possible to say one way or the other, whether necessary notification, as contemplated in Section 110 of the Motor Vehicles Act has been issued or not. Be that as it may, put up after one month so that in the meanwhile, if no notification has been issued, as required under Section 110 of the Motor Vehicles Act, the State may take steps and issue necessary notification.
Adjournments, as prayed for, were granted to the parties until again on 13.2.1989 the matter was heard at some length.
3. The learned Government Advocate placed certain instructions given to him by the High Court as well as the State Government. Instructions did not appear to touch the main question involved in this application, namely, whether by conferring power of Claims Tribunal upon one or the other Judicial Officer who may satisfy the requirement of the qualification laid down in Sub-section (3) of Section 110 of the Motor Vehicles Act, the duty created by Sub-section (2) of Section 110 thereof is discharged or not. The court noted:
According to the petitioner a Tribunal has to be constituted independent of any authority functioning or otherwise as a court or Tribunal, in the line of Bihar Administrative Tribunal and such other authority or Tribunal constituted under or by a law, cannot but function as a whole-time Tribunal exercising jurisdiction created by the law.
In view of the aforementioned contention learned Government Advocate prayed for two weeks' further time. The case was accordingly adjourned more than once, so that the learned Government Advocate may obtain necessary instructions.
4. The case has been heard at length. The learned Government Advocate has stated that, whether Claims Tribunal shall be manned by a person who is qualified for appointment as prescribed in Sub-section (3) of Section 110 of the Act as a whole-time officer/Tribunal or not and, whether requirement of the appointment as a member of the Tribunal and, thus, constitution of the Tribunal shall be fulfilled by conferring the power of the Tribunal upon a Judicial Officer who is qualified to be appointed, will meet the requirement of law or not are questions which have to be decided only on the basis of the reading of the law and its interpretation. No instruction in this behalf, therefore, according to the learned Government Advocate, is necessary and the case may be disposed of on interpretation of the language of the said provision.
5. As to what Section 110 of the Act states, is clear and unambiguous. It states that the State Government, by notification in the Official Gazette, may constitute one or more Motor Accidents Claims Tribunals for such area as may be notified in the notification for the purposes referred to in the section itself. Constituting a Tribunal is different from conferring power to entertain any claim as a special Jurisdiction court.
6. Proviso to Sub-section (1) of Section 110 has distinguished a Claims Tribunal from a civil court, which, in the circumstances stated therein, may adjudicate a claim for compensation in respect of damage to the property exceeding Rs. 2,000/-, on a reference by the Claims Tribunal with respect to such a claim. The Claims Tribunal shall have no jurisdiction to entertain any such question.
7. The idea behind creating a special forum for adjudication of claims for compensation in respect of accidents arising out of the use of motor vehicles or damages to any property of a third party so arising or both, is to divest a civil court of its jurisdiction to entertain a dispute arising out of such accidents.
Section 110-F of the Act states:
Where any Claims Tribunal has been constituted for any area, no civil court shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by the Claims Tribunal for that area, and no injunction in respect of any action taken or to be taken by or before the Claims Tribunal in respect of the claim for compensation shall be granted by the civil court.
Thus, where a right or liability is created by or under the Motor Vehicles Act, the remedy provided by the Act alone has to be availed of.
8. In New India Assurance Co. Ltd. v. Shanti Misra 1976 ACJ 128 (SC), the Supreme Court has already held that jurisdiction of civil court is ousted as soon as Claims Tribunal is created. It is obvious that the functions and duties of the Tribunal are very much like other bodies to discharge judicial function, yet it is not a court, it is a Tribunal of limited jurisdiction. Until such a Tribunal is constituted, the remedy provided by Section 9 of the Code of Civil Procedure shall continue to be available to any person who may be entitled to compensation.
9. The word constitution' in the context of 'creation of a body', 'or its establishment' shall mean 'an action ordaining or decreeing a body or institution'. In fact, the separation of the jurisdiction of a civil court and that of a Claims Tribunal under the Act is so complete that procedure and powers of Claims Tribunals and finality of the award by it are prescribed in the various provisions of the Act and Section 110-D of the Act has prescribed a forum of appeal against the award of the Claims Tribunal stating:
Subject to the provisions of Sub-section (2)...
which states No appeal shall lie against any award of a Claims Tribunal, if the amount in dispute in the appeal is less than two thousand rupees.
and 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. And since the Tribunal is not a court and in the absence of the proviso to Sub-section (1) of Section 110-D, provisions of the Indian Limitation Act could not have been applied to the proceedings arising out of the award, it has been added 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.
10. In New India Assurance Co. 's case 1976 ACJ 128 (SC), the court was faced with a peculiar situation. Until a Tribunal was constituted, the claims were not filed in the civil court and under the amended law such claims had become barred before the Tribunal. The Supreme Court said that the Claims Tribunals, however, were not constituted by the State Government at one and the same time. They were constituted on different dates for different areas. Until and unless the Claims Tribunals were constituted the provisions of the new sections introduced in the year 1956 could not be availed of. But as soon as a Claims Tribunal was constituted, the jurisdiction of the civil court was barred by Section 110 of the Act.
11. Observations of this court to the contrary in the case of the Bihar Co-op. Motor Vehicles Insurance Society Ltd. v. Rameshwar Raut 1969 ACJ 405 (Patna), were declared obiter dicta. In fact, introduction of the new provisions in Section 110-A to Section 110-F which state that a State Government may make rules for the purpose of carrying into effect the provisions of Sections 110 to 110-E, and in particular, such rules may provide the form of application for claims for compensation and the particulars it may contain, the fees to be paid in respect of such applications, the procedure to be followed by a Claims Tribunal in holding an inquiry and the powers vested in a civil court which may be exercised by a Claims Tribunal leave no scope to hold that the Tribunal's constitution will be completed by conferring power on Judicial Officers.
12. It is obvious that Section 110 of the Act has not contemplated a provision like Section 13 of the Code of Criminal Procedure, which says:
The High Court may, if requested by the Central or State Government so to do, confer upon any person who holds or has held any post under the Government, all or any of the powers conferred or conferrable by or under this Code on a Judicial Magistrate of the first class or of the second class, in respect to particular cases or to particular classes of cases, or to cases generally, in any district, not being a metropolitan area.
It has clearly contemplated constitution of a Tribunal of. special jurisdiction. Such constitution has to be by a notification of the State Government. A person appointed to the Tribunal as a member or the Chairman shall be a member or the Chairman of the Tribunal and nothing else. The law available in the language of Section 110 of the Act itself, does not permit conferring powers upon the Judicial Officers of the State, who are otherwise subordinate to this court's judicial as well as administrative control. They, for obvious reasons, cannot be the Tribunals of special jurisdiction for the claim cases. No Claims Tribunal can be constituted by ignoring the qualifications. A person who is qualified for appointment as a Judge of the High Court or a person who has been a Judge of the High Court or who has been a District Judge and not a sitting Judge or Judge of the High Court can also be appointed as Chairman or member of the Claims Tribunal.
13. Having considered, thus, the language of Section 110 and other provisions related thereto in the Motor Vehicles Act, our conclusions are that the Claims Tribunal has to be an independent authority to discharge such functions which are exclusively given to its jurisdiction by the various provisions of the Motor Vehicles Act and it has to be so ordained by a notification of the State Government that a Claims Tribunal has been constituted having a specified territorial jurisdiction. Unless these two conditions are fulfilled, no Claims Tribunal as required under Section 110 of the Motor Vehicles Act is constituted.
14. As a result of our aforesaid conclusions, we hold that Judicial Officers, who have been conferred with the power of Claims Tribunal, have no jurisdiction to entertain claims. If any claim case has been entertained by any such Judicial Officer, that will be deemed, therefore, to be in a civil court and accordingly transferred to the court of competent jurisdiction.
15. If the State Government is still desirous of having a special Tribunal, it must forthwith proceed to frame rules as indicated above and constitute a Tribunal, as required by Section 110 of the Act by a notification as envisaged therein.
16. We share the concern of the petitioner that by not constituting Claims Tribunal as envisaged by Section 110 of the Act, the Government of the State has been failing in its duty to provide to the sufferers of the accidents by user of the motor vehicles a special forum. The State Government cannot read in the language of Section 110 of the Act, absence of a mandate to it to constitute a Claims Tribunal. In our view, it is obliged to constitute as many Tribunals as are required in different areas of the State. We express our concern without issuing any mandamus leaving it to the judicious discretion of the State Government in the belief that vox is not meant for the courts only but for the Government of the State as well.
17. We, however, issue a mandamus restraining the courts conferred with the powers of the Claims Tribunal from proceeding with the hearing of any claim case filed before them under Section 110 of the Act and direct for transfer of all such cases to the civil courts of competent jurisdiction.
18. Our order today, however, shall not affect adjudications already done. The courts allegedly conferred with powers of the Tribunal are restricted to entertain any claims in future until authorised by law in this behalf.
19. Before we part with our judgment, we record our appreciation to the efforts of the petitioner and award a cost of Rs. 500/- in his favour payable by the respondent, State of Bihar, as we feel the State should bear the cost of voxpopuli instead of the petitioner individually. The application is disposed of.