Jammu & Kashmir High Court
Jammu And Kashmir Projects ... vs Fatima Begum And Ors. on 4 June, 1999
Equivalent citations: 2000ACJ1145
JUDGMENT Syed Bashir-Ud-Din, J.
1. Through the medium of these motions, order dated 19.12.1997 of not entertaining the two civil First Appeal Nos. 79 and 80 of 1997 for failure to comply with provisions of Section 173 of Motor Vehicles Act regarding deposit of Rs. 25,000 or 50 per cent of the awarded amount (whichever is less), is prayed to be reviewed.
2. On 5.10.1985, one Ghulam Qadir Khan seated besides his son Abdul Rashid Khan in Ambassador motor car with the registration mark and No. DAC 3153, met with a vehicular accident at Kadalbai Awantipora. The Ambassador car with the above occupants collided head-on with a load carrier bearing registration mark and No. JKD 2844. The accident occurred due to the rash and negligent driving of the above load carrier registered in the name of J&K Projects ConstructionCorporation. The load carrier (truck) was driven by its driver one Bhopinder Singh. Ghulam Qadir Khan died, whereas Abdul Rashid Khan sustained multiple grievous injuries and was permanently disabled. The car in which they were travelling was totally wrecked by the impact of the offending vehicle.
3. Abdul Rashid Khan preferred Claim Petition No. 1 of 1986 and the widow and two daughters of the deceased Ghulam Qadir Khan preferred a separate Claim Petition No. 2 of 1986 before the Motor Accidents Claims Tribunal (M.A.C.T.), Srinagar. After holding enquiry in the compensation claim, the Tribunal by a common judgment and award dated 22.4.1997, disposed of both the claim petitions. Applicant Abdul Rashid Khan was awarded compensation of Rs. 1,80,000. Out of this awarded compensation, National Insurance Co. Ltd. is ordered to pay Rs. 1,50,000, J&K Projects ConstructionCorporation Rs. 25,000 and driver Bhopinder Singh Rs. 5,000. Annual interest at the rate of 12 per cent was allowed on these sums from date of application till final payment.
4. The widow and two daughters of the deceased were awarded compensation of Rs. 5,80,000. Out of this sum National Insurance Co. Ltd. is held liable to pay Rs. 1,50,000. Out of the remaining amount, Rs. 4,25,000 is. awarded against the J&K Projects ConstructionCorporation and the remaining amount of Rs. 5,000 is to be paid by the driver. On all these amounts interest is awarded at the rate of 12 per cent per annum from the date of application till amount is paid in full. Against this award of 22.4.1997, two Appeal Nos. 79 and 80 of 1997 with applications for condonation of delay were filed in the High Court on 11.8.1997. This court on consideration of the matter condoned the delay.
5. On 8.12.1997, the court noticed that the appeals and the applications for condonation of delay are not accompanied by deposit of Rs. 25,000 or 50 per cent of the award (whichever is less) in compliance with provisions of Section 173 of Motor Vehicles Act. Court directed the appellant J&K Projects ConstructionCorporation to comply with the provisions of law and to deposit the amount by next date, when the case was to come up before the court. On 19.12.1997 when the appeals were listed and came up before the court, as the appellant had failed to comply with deposit provisions of Section 173 of Motor Vehicles Act. the court ordered, 'the appeals cannot be entertained'.
6. Against this order of the court of not entertaining the appeals, the appellant J&K Projects ConstructionCorporation has filed review petitions (Nos. 3 and 4 of 1998) with applications for condonation of delay (CMP Nos. 123 and 124 of 1998).
7. The parties have been heard. Matter examined. The counsel for the parties, on their consensual submissions, were heard both on condonation matter as also on merits of the review petition.
8. The parties are not at variance in terms of the provisions of law including the High Court Rules, 1975, that review of the judgment or order of the court can be entertained only on grounds mentioned in Order 47, Rule 1 of Civil Procedure Code. Further the review petition has to be filed within thirty days from the date when the judgment or order is delivered unless the court for 'sufficient cause' condones the delay beyond thirty days.
9. The order of which review is sought is dated 19.12.1997 and admittedly, the review petition is filed much beyond thirty days, prescribed time period. In the application the grounds put forth for condonation of delay, are that the counsel Mr. M.A. Baba applied for copy on 8.12.1997 and obtained the copy only on 2.2.1998. Up to 13.2.1998 petitioner communicated with the counsel. The petitioner decided to change the counsel and entrusted the papers to the new counsel on 16.2.1998, who prepared the petition and application next day and filed the same in court on 18.2.1998. It is seen from record that the petitioner applied for certified copy only on 8.1.98 and not on 8.12.1997 as stated, which was ready and delivered to the petitioner through counsel on 2.2.1998. There is no explanation whatsoever as to why petitioner failed even to apply for copy up to 8.1.98. Can the advanced contentions of time being consumed in making enquiries from the lawyer, changing the lawyer and making arrangements for preparing copies of the petitions, be regarded, in the facts and circumstances of this case, as reasonable explanation for not filing the review petition in time? These factual pleas run in omnibus terms and are too generalized to inspire any confidence for attaching any credence to the pleas as suggested. The direction of this court for depositing the amount in terms of Section 173 of Motor Vehicles Act was passed initially on 8.12.97. It was not complied with. When the case came up before the court on 19.12.1997, the court refused to entertain the appeal for non-compliance of court orders and provisions of Section 173 of Motor Vehicles Act. The deposit has not been made as directed by court. That the appeal was filed before the High Court initially beyond time with application for the condonation of delay which delay was subsequently condoned, yet the appeal and the condonation motion was not accompanied by any deposit in compliance with Section 173 of Motor Vehicles Act. There is no explanation whatsoever on record as to why the mandatory provisions of Section 173 of Motor Vehicles Act were not complied with. The J&K Projects ConstructionCorporation, review petitioner, is not an ordinary litigant which can be duped or hoodwinked by a lawyer. The Managing Director of theCorporation, who is of the rank of Chief Engineer, cannot be heard to say that theCorporation was not informed by the counsel or communicated the order of deposit of amount, when learned counsel Mr. M.A. Baba was standing counsel ofCorporation dealing with number of cases before various courts on behalf of theCorporation. The so-called negligence and lack of information and communication to the petitioner, appears an afterthought exercise devoid of merit to supply some sort of justification for seeking review of the impugned order belatedly. In my view, good and sufficient grounds are not made out to warrant the condonation of delay. The factual basis of condonation motion qua review here is like quicksand with no terra firma to provide any sustenance to the cause of applied condonation of delay.
10. The learned counsel for review petitioner submits that even if a case is not made out for condonation of delay, the impugned order falls within the category of orders which are non est and void ab initio and, therefore, while passing the order, the court has committed the error or mistake which the court has to rectify under its review jurisdiction. The counsel further submits that this is so because requirement of deposit under Section 173 as introduced by Motor Vehicles Act, 1988 (hereafter 'Act of 1988'), came into force w.e.f. 1.7.89. The earlier Motor Vehicles Act, 1939 (hereafter 'Act of 1939') which provided appeal under Section 110-D did not provide for deposit of Rs. 25,000 or 50 per cent of award (whichever is less). The proceedings in this case have been initiated under Act of 1939 in respect of an incident which occurred on 5.10.1985. Notwithstanding the award of M.A.C.T. having been passed under Act of 1988, the appeal provision minus deposit clause, as laid in the Act of 1939 shall apply in terms of saving Clause (2) of Section 217 of Act of 1988 read with Section 6 of General Clauses Act. Therefore, order of court under Section 173 of the Act of 1988 qua deposit is a patent mistake amenable to rectification under review jurisdiction.
11. The counsel for respondents submits that the order of not entertaining the appeal for failure of deposit as required under Section 173 of Motor Vehicles Act of 1988, irrespective of the question whether the incident took place or proceedings were initiated before the Act of 1988 came into force or not, is a valid and legal order and cannot be said to be non est or void. Wrong application of law or failure to apply the appropriate law cannot be said to be an error apparent on record amenable to be corrected in review. Erroneous decision of law is not a ground for review. Such a case is not covered by the review provisions of Rule 1 of Order 47 of Civil Procedure Code.
12. The repeal of Act of 1939 by Act of 1988 in effect conveys that the Act of 1939 became non-existent, except qua transactions past and closed or saved as provided for by Section 217 of the Act of 1988 read with Section 6 of General Clauses Act.
13. In India Tobacco Co. Ltd. v. Commercial Tax Officer, Bhavanipore AIR 1975 SC 155, it has been held:
...that repeal connotes abrogation and obliteration of one statute by another from the statute book as completely as if it had never been passed. When an Act is repealed, it must be considered, except as to transactions past and closed, as if it had never existed. Repeal is not a matter of mere form but is of substance, depending on the intention of the legislature. If the intention indicated either expressly or by necessary implication in the subsequent statute was to abrogate or wipe off the former enactment wholly or in part, then it would be a case of total or pro tanto repeal....
14. In Gajraj Singh v. State Transport Appellate Tribunal AIR 1997 SC 412, Hon'ble K. Ramaswamy, J. speaking for the court observed:
...When there is a repeal and simultaneous re-enactment, Section 6 of the General Clauses Act would apply to such a case unless contrary intention can be gathered from the repealing Act. Section 6 would be applicable in such cases unless the new legislation manifests intention inconsistent with or contrary to the application of the section. Such incompatibility would have to be ascertained from all relevant provisions of the new Act. Therefore, when the repeal is followed by a fresh legislation on the same subject, the court would undoubtedly have to look to the provisions of the new Act only for the purpose of determining whether the new Act indicates different intention. The object of repeal and re-enactment is to obliterate the repealed Act and to get rid of certain obsolete matters....
15. In some cases it has been held that in respect of an appeal against award filed after the enforcement of Act of 1988, the requirement of deposit of the amount provided by Section 173 of the Motor Vehicles Act is mandatory. The deposit of the amount is a condition precedent to exercise of right of appeal filed after 1988 Act came into force, irrespective of the question whether the incident took place or claim petition was filed or the award was made before the Act of 1988 came into force or not. [See 1994 SC Cri R 336 (338); 1996 AIHC 1314 (1316) (Bom); New India Assurance Co. Ltd. v. Mahadev Jatta Naik 1992 ACJ 100 (Karnataka); Gaya Prasad v. Suresh Kumar 1992 ACJ 200 (MP); Ramesh Singh v. Chinta Devi 1995 ACJ 130 (Patna); and Oriental Insurance Co. Ltd. v. P. Mariyamma 1994 ACJ 1219 (AP)].
16. However, a contrary view has been taken in some cases, in so far as it is held that where right of appeal accrued under the Act of 1939, in respect of a claim where claim petition was filed under the Act of 1939, notwithstanding that the petition was disposed after the Act of 1988 came into force, right of appeal which accrued under the old Act survives even after repeal of the Act of 1939 by the Act of 1988. Therefore, the appeal is competent notwithstanding the failure to deposit the prescribed amount as provided by Section 173 of Motor Vehicles Act. [See Ramesh Singh v. Cinta Devi 1996 ACJ 730 (SC); Oriental Insurance Co. Ltd. v. Dhanram Singh 1990 ACJ 321 (Allahabad); Oriental Insurance Co. Ltd. v. Parbati Mohanta 1993 ACJ 550 (Orissa); and Philip v. Surendran 1994 ACJ 279 (Kerala)].
17. In the context of this cleavage of judicial opinion and contra decisions, the question arises whether in such a situation powers of review can be used to upset the decision arrived at after following one stream of decisions to bring the decision in accord with the view and judgment given in other stream of cases and that too in the context of legal parameters set out for exercise of review jurisdiction by the court(s).
18. Powers of review cannot be used as appellate jurisdiction. Erroneous decision of law cannot be corrected in review. Review jurisdiction can be exercised only to correct a judgment or order, on discovery of new and important matter or evidence not within the knowledge or which cannot be produced by the review petitioner at the time when the judgment or order was passed or on account of some mistake or error apparent on the face of the record or for any other analogous reason.
19. Discovery of a new and important matter refers to evidence or other matter in the nature of evidence, but does not include a legal authority in existence at the date of judgment but not brought to the notice of the court. [See (1899) 21 All 152].
20. A wrong application of law or failure to apply the appropriate law, cannot be said to be an error apparent on the face of record. [See Rajkumar Ramavtar Chourasia v. Mathew Charian Christian AIR 1984 Bom 458 and Laxman Anandrao v. Ramchandra Vasudeo Agasti AIR 1938 Nag 145].
21. In Satyanarayan Laxminarayan Hedge case, AIR 1960 SC 137, the Apex Court in the context of error apparent on the face of the record, observed:
...An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record....
22. In 1998 SLJ 180 (188), a Division Bench of this court observed:
...We have considered all the authorities of the Apex Court and of other High Courts. We have reached to a conclusion to hold as follows:
(i) an error apparent on the face of the record must be such a patent error which in one glance can be detected without advancing long drawn arguments on either side;
(ii) where there are two possible views regarding the interpretation or application of law vis-a-vis the particular facts of a case, taking one view, even if it is erroneous, cannot be said to be an error apparent on the face of the record;
(iii) even if a decision or order is erroneous in law or on merits, it cannot be accepted that it is an error apparent on the face of the record;
(iv) no hard and fast rule can be laid down to declare or to point out a certain error to be an error apparent on the face of the record. The exercise of power under review will depend upon the peculiar facts of each case....
23. In Meera Bhanja v. Nirmala Kumari Choudhury AIR 1995 SC 455, Hon'ble S.B. Majmudar, J. observed in the context of entertaining the review petition on the ground of error apparent on the face of record that, ...It has to be kept in view that an error apparent on the face of record must be such an error which must strike one on mere looking at the record and would not require any long drawn process of reasoning on points where there may conceivably be two opinions....
24. In Parison Devi v. Smitri Devi (1997) 8 SCC 715, it has been held that, ...Under Order 47, Rule 1, Civil Procedure Code a judgment may be open to review, inter alia, if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47, Rule 1, Civil Procedure Code. In exercise of the jurisdiction under Order 47, Rule 1, Civil Procedure Code it is not permissible for an erroneous decision to be 'reheard and corrected'. A review petition has a limited purpose and cannot be allowed to be 'an appeal in disguise'. There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction....
25. In result the impugned order sought to be reviewed, is not amenable to review jurisdiction and does not fall within the category of orders of which review can be ordered.
26. The contention of the counsel that as the impugned order merely says that the 'appeal cannot be entertained at this stage', but does not in terms provide that the appeal is dismissed, therefore, the appeal is not dismissed, cannot be accepted. Admittedly, the deposit of the amount provided by first proviso to Sub-section (1) of Section 173 of 1988 Act has not been made pursuant to the directions and in the manner directed by this court. The appeal cannot have been entertained by the High Court on behalf of the J&K Projects ConstructionCorporation (JKPCC) ordered to deposit the above amount. The words in the first proviso to Sub-section (1) of Section 173 of 1988 Act 'no appeal shall be entertained by the High Court' in fact implies that the appeal cannot be taken on record much less to be heard. Entertainment in such circumstances means and implies nothing less than dismissal of the appeal. In United India Insurance Co. Ltd. v. Mohammad Maqbool Rishi L.P.A. No. 380 of 1997; decided on 3.8.1998, the Division Bench of this court upheld the order of dismissal of single Bench of this court in appeal against the award of the M.A.C.T. for failure of the appellant to comply with the deposit provisions of Section 173 of Motor Vehicles Act while filing the appeal. The court in L.P.A. after noting the reasons for not entertaining the appeal, in effect held that appeal was rightly dismissed.
27. In result, the condonation applications as also the review petitions are dismissed.
28. Before parting with the case, the court deems it proper to place on record its disapproval of the manner and hot haste with which the Tribunal released the award amount to the claimants, notwithstanding the order of this court restraining the disbursement of the amount was passed in presence of the counsel for the parties. The act of the then Presiding Officer of the M.A.C.T. in drawing and disbursing the amount out or amounts credited to its account to satisfy various claims other than the present one, from the bank, without first ascertaining if the amount was at all credited to its account by JKPCC, is a wanton act. The M.A.C.T. has disbursed the amount(s) credited to its account for other claimants, to the petitioners. It has starved the claimants for whom the amount was deposited and to whom it was due. The others' award money has been siphoned off to meet the petitioners' claim. This is a condemnable practice which needs to be stopped. Only when the award money is realised/received, then alone M.A.C.T. should release it to concerned awardee/ claimant. M.A.C.T. is well advised to make payments through cross cheques or other permissible mode in order to ensure that the amount drawn against an award or claim is received/realised in advance from the party against whom the award is passed. The nazarat and accountancy section of the Tribunal need to be toned up with a view to streamline the functioning of the nazarat and accountancy branches of the Tribunal. It is primarily for the M.A.C.T. to ensure that the money received on account of a claim is applied towards such claim.
29. As the main petition stands disposed of and in effect the Tribunal's award is not disturbed, therefore, the matter so far as it concerns the drawal and disbursement of the award amount(s) in this case, is also closed in terms of observations as above, leaving it open to the Tribunal to realise and adjust the award amount in its accounts.