Madhya Pradesh High Court
National Insurance Co. Ltd. And Etc. vs Shrikanl Vinod Tiwari And Ors. on 7 March, 2007
Equivalent citations: 2007ACJ2809, 2007(3)MPHT103, AIR 2007 MADHYA PRADESH 98, 2007 (4) ABR (NOC) 575 (MP), (2007) 3 MPLJ 130, (2007) 3 MPHT 103, (2007) 2 JAB LJ 138, (2007) 4 ACJ 2809
Bench: Chief Justice, Deepak Verma, A.M. Sapre
JUDGMENT S.S. Jha, J.
1. Awards of the Motor Accident Claims Tribunals for amount less than Rs. 10,000/- have been challenged before this Court in the writ petition and the civil revisions because Sub-section (2) of Section 173 of the Motor Vehicles Act, 1988, bars an appeal against the award of the Claims Tribunal if the amount in dispute is less than Rs. 10,000/-.
2. In New India Insurance Co. Ltd. v. Smt. Rafeeka Sultana 2000 (3) MPLJ 561 : AIR 2001 MP 116 (FB), the Motor Accident Tribunal awarded a compensation of Rs. 1,60,000/- with interest at the rate of 12% per annum from the date of claim till the date of realisation and the Insurance Company assailed this award through a Civil Revision under Section 115 of the Civil Procedure Code. The claimant contended that the Insurance Company cannot challenge the quantum of compensation in an appeal before the High Court because defences of the Insurance Company to a claim have to be confined to the grounds mentioned under Section 149(2) of the Motor Vehicles Act, 1988 (for short 'Act'). A Full Bench of this Court held that since under the Act, the Insurance Company cannot file an appeal challenging the quantum of compensation, it cannot file revision under Section 115 of the Civil Procedure Code or a petition under Article 227 of the Constitution of India. In view of the judgment of the Full Bench of the High Court in New India Insurance Co. Ltd. v. Smt. Rafeeka Sultana (supra), the following substantial question of law has been referred to this Larger Bench for opinion.
Whether in a case where remedy of appeal is not available under Section 173(3) of the Motor Vehicles Act, the remedy of revision under Section 115 of the CPC or the constitutional remedy under Articles 226/ 227 of the Constitution of India can be invoked to assail an award passed by the Motor Accident Tribunal?
3. Shri R.P. Agrawal learned Senior Advocate for the petitioner Insurance Company submitted that a party cannot be left remediless. If an appeal is barred then aggrieved party has a remedy of revision under Section 115 of the Code of Civil Procedure. 1908 (for short 'CPC') or in the alternative to move this Court to examine the validity and correctness of the award in exercise of its power of Superintendence under Article 227 of the Constitution.
4. Learned Counsel for the Insurance Company submitted that the Motor Accidents Claims Tribunal (for short 'Tribunal') is a Court subordinate to the High Court and, therefore, its orders which are not amenable to appeal are revlsable before this Court. He further submitted that the power of the High Court to examine the legality and propriety of award under Article 227 of the Constitution cannot be closed and the Full Bench in the case of New India Insurance Co. Ltd. v. Smt. Rafeeka Sultana AIR 2001 MP 116 (supra) has overlooked the decision of the Apex Court in the case of L. Chandra Kumar v. Union of India . He submitted that the Full Bench has not laid down the correct law in holding that if an appeal is barred under the Act then it cannot be questioned in revision under Section 115 of the CPC or under Article 227 of the Constitution.
5. Shri Agrawal learned Senior Advocate for the petitioner Insurance Company further submitted that the Tribunal is a Court subordinate to the High Court and is performing functions of a Civil Court and, therefore, awards or orders by the tribunal are amenable to revisional jurisdiction of the High Court under Section 115 of the CPC where remedy of appeal is not available.
6. Shri Umesh Trivedi learned Counsel appeared on behalf of the petitioner. Owner of the Vehicle in Civil Revision No. 604/2005 to Civil Revision No. 609/2005. He submitted that award of Rs. 3,000/- has been passed against the owner exonerating the Insurance Company. He challenged the award under Section 115 of CPC on the ground that Insurance Company is liable to indemnify the claim. He argued that the Tribunal is a Civil Court and subordinate to the High Court and amenable to revisional jurisdiction under Section 115 of CPC.
7. A Special Bench of this Court in the case of Oriental Insurance Co. Ltd. v. Chintaman has held that the Tribunal is a Court subordinate to the High Court. In the case of Sarmaniya Bai v. M.P. Rajya Parivahan Nigam , a Full Bench of this court which considering the powers of Claims Tribunal to execute its award and interpreting Section 110E of the Motor Vehicles Act, 1939, has held that the Claims Tribunal has jurisdiction to enforce its award adopting the procedure provided under the Civil Procedure Code. The Full Bench further held that the award can be executed by the Claims Tribunal under Section 36 and Order XXI of the CPC. Relying upon an earlier Full Bench judgment of this Court in the case of Mangilal v. Parasram , the Full Bench also held that the rules framed by the State of Madhya Pradesh have expressly provided for applicability of the Provisions of Order XXI, CPC for enforcement of the awards passed by the Claims Tribunal. Reference has been made to the earlier judgment of this Court in the case of Krishna Gopal Devi Prasad v. Dattatraya Madho Lad . wherein while considering difference of opinion between S.B. Sen and Raina, JJ. it has been held that the Tribunal is a Civil Court and is subordinate to the High Court. While considering the scope of Section 9 of the CPC, it is held that the mere fact that the Tribunal has no general jurisdiction to try a 'suit' does not necessarily mean that it is not a Court 'for the purpose of Section 115'. While considering the analogous provision under Section 110 of the Act of 1939 and interpreting Section 9 of the CPC. it has been held that Section 9 lays down that Civil Court shall have jurisdiction to try all suits of civil nature excepting suits of which cognizance is either expressly or impliedly barred. Under Section 175 of the Act of 1988, jurisdiction of Civil Court is barred in reference to claims arising out of motor accidents which necessarily means the Tribunal is exercising the functions of a Civil Court. Before enactment of Motor Vehicles Act claims were examined by the Civil Court. Thus, the claims are necessarily of civil nature and adjudicated by the Tribunal and basically it is performing functions of a civil Court.
8. In the case of Smt. Rafeeka Sultana AIR 2001 MP 116 (supra) it is held that Claims Tribunal are Civil Courts, since they determine civil rights and liabilities. They are not Civil Courts constituted under Civil Procedure Code. It is further held where appeal is not provided recourse to revision under Section 115 of CPC or writ petition under Article 227 of the Constitution of India would not be justified. But this reference was in relation to the Insurance Company and it is held where Insurance Company cannot file appeal. it cannot file revision under Section 115, CPC or petition under Article 227 of the Constitution of India. Thus, it is clear that the full bench judgment was considering the rights of the Insurance Company to file appeal. Defence of the Insurance Company is limited under Section 149(2) of the Act. unless permission has been given by the Claims Tribunal for taking defence under Section 70(2) of the Act of 1988 by passing a reasoned order. Insurance Company will not have a right of appeal or recourse to revision. Thus, full bench in the case of Rafeeka (supra) has considered the limited defence available to the Insurance Company under Section 149(2) of the Act and held that the Insurance Company cannot file appeal against the award beyond the limited defence available to it under Section 149(2) of the Act. Thus, necessary implication will be that where appeal by Insurance Company is not permissible on account of the restriction under Section 149(2) of the Act, Insurance Company is precluded from challenging the award either under Section 115, CPC or under Article 227 of the Constitution of India. However, judgment of the full bench is for the limited extent and has not laid down the broad principles in respect of the question that when appeal is not available then the Insurance Company or other party aggrieved by the award has a remedy under Article 227 of the Constitution or under Section 115, CPC.
9. The Apex Court in the case of State of Haryana v. Smt. Darshanadevi , has held:
The reasoning of the High Court in holding that Order XXXIII will apply to Tribunals which have the trappings of the civil Court finds our approval and we affirm the decision.
The Apex Court while examining the petition filed by the Claimant as an indigent person, which was rejected on the ground that Order XXXIII is not applicable to claim petitions under the Act of 1939 has held that the Tribunal has the trappings of a civil Court and is a civil Court. Similar view is expressed by the Apex Court in the case of Bhagwati v. I. S. Goyal 1983 ACJ 123. The Apex Court while approving the judgment in the case of State of Haryana v. Smt. Darshanadevi (supra), has held that the Motor Accident Claims Tribunal constituted under the Motor Vehicles Act is a civil Court for the purposes of Section 25 of the CPC. These judgments lay down that the Tribunal has trappings of a civil Court.
10. But a Special Bench of Karnataka High Court has taken a view that Tribunal is not a Court subordinate to the High Court in the case of Union of India v. Mysore Paper Mills . The Special Bench has held that Tribunal is not a regular civil Court as contemplated under Sections 3 and 9 of the CPC since the jurisdiction has been taken away from the civil Court and is vested with the Tribunal to exercise it in the capacity of the Tribunal and, therefore. Tribunals are not preforming their functions as a regular civil Court and the Tribunals are not the Courts subordinate to the High Court. We respectfully disagree with the aforesaid view of the Full Bench.
11. The Apex Court in the case of Sadhna Lodh v. National Insurance Co. Limited has held in para 6 as under:
The right of appeal is a statutory right and where the law provides remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Articles 226/227 of the Constitution on the premises that the insurer has limited grounds available for challenging the award given by the Tribunal. Section 149(2) of the Act. limits the insurer to file an appeal on those enumerated grounds and the appeal being a product of the statute, it is not open to an insurer to take and plea other than those provided under Section 149(2) of the Act. This being the legal position, the petition filed under Article 227 of the Constitution by the insurer was wholly misconceived. Where a statutory right to file an appeal has been provided for it is not open to the High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by wav of an appeal has not been provided for against the order and judgment of a District. Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 of the CPC. Where remedy for filing a revision before the High Court under Section 115 of CPC has been expressly barred by a State enactment only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution. As a matter of an illustration. where a trial Court in a civil suit refused to grant temporary injunction and an appeal against the refusal to grant injunction has been rejected, and a State enactment has barred the remedy of filing revision under Section 115. CPC in such a situation a writ petition under Article 227 would the and not under Article 226 of the Constitution. Thus, where the State legislature has barred a remedy of filing a revision petition before the High Court under Section 115, CPC, no petition under Article 226-of the Constitution would lie for the reason that a mere wrong decision without anything more is not enough to attract jurisdiction of the High Court under Article 226 of the Constitution.
In the aforesaid case, question of liability of the Insurance Company and the grounds available to the Insurance Company to challenge the award under Section 149(2) of the Act was considered and it has been held that where statutory appeal is not provided against the order and judgment of a District Judge, remedy available to the aggrieved person is to file revision before the High Court under Section 115 of CPC unless the remedy under Section 115 is expressly barred by the State enactment, only in such a case, petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution.
12. In the case of ITI Limited v. Siemens Public Communications . it has been held that under the Arbitration and Conciliation Act. 1996, where Second Appeal is barred under Sub-section (3) of Section 37, remedy of revision would not cease to be available. Although revision is not specifically provided for by the Act but in the absence of any express exclusion of the applicability of the provisions of CPC. no inference can be drawn that provisions of CPC would not apply to proceedings arising under the Act and revision is not maintainable. Similarly, in the case of Nirma Limited v. Lurgi Lentjes Energietechnik GMBH , similar principles have been reiterated by the Apex Court. While referring to the judgment in the case of Shyam Sunder Agrawal and Co. v. Union of lndia . it has been held that merely because second appeal against an appellate order is barred under Section 39(2) of the Arbitration Act. 1940, the remedy and revision does not cease to be available to the petitioner. for a Civil Court deciding an appeal under Section 39(2) remains a Court subordinate to the High Court within the meaning of Section 115 of CPC.
13. Sub-section (2) of Section 173 of the Act is quoted hereinbelow:
Section 173(2).-- No appeal shall lie against any award of a Claims Tribunal, if the amount in dispute in the appeal is less than ten thousand rupees." Now, the question involved in the case is whether the intention of the legislature is to prohibit any further action against the award where the dispute in the appeal is valued less than Rs. 10,000/-. The legislature has not given right of appeal where the dispute in appeal is valued less than Rs. 10,000/-, but no express provision is made in the Act barring the recourse to revision under Section 115 of CPC.
14. When the High Court is examining the correctness of the judgment, it cannot be deprived of exercising its power of revision under Section 115 of CPC. The legislature has only barred filing of appeal where the amount in dispute in the appeal is less than Rs. 10,000/- but not the revision. No express provision has been laid down whereby revisional jurisdiction of the High Court is excluded. Thus, the High Court shall continue to have powers of superintendence under Section 115 of CPC upon the Tribunal. Special Statute is a self contained Code and whether a Special Act while conferring power on a subordinate Court in case the decision rendered by such Court shall be final, that will only be effective in taking away a remedy by way of appeal but will not exclude the remedy or revision under Section 115 of CPC.
15. In the case of Mafatlal Industries Ltd. v. Union of India, however, it has been held in para 108(x) of the judgment that so far as the jurisdiction of the High Courts under Article 226 of the Constitution -- or of the Apex Court under Article 32 -- is concerned, it remains unaffected by the provisions of the Act. Even so. the Court would, while exercising the jurisdiction under the said articles, have due regard to the legislative intent manifested by the provisions of the Act. The writ petition would naturally be considered and disposed of in the light of and in accordance with the provisions of Section 11B of the Central Excises and Salt Act. This is for the reason that power under Article 226 has to be exercised to effectuate the regime of law and not for abrogating it. Even while acting in exercise of the said constitutional power, the High Court cannot ignore the law nor can it override it. The power under Article 226 is conceived to serve the ends of justice and not to transgress them. Similarly, the High Court while entertaining a revision in exercise of its power of superintendence under Section 115 of CPC must ensure that the legislative intent is followed and is not frustrated and must ensure that the revision is not a dispute relating only to the amount of award.
16. In fact, while exercising the revisional power, the Court has limited jurisdiction. It has to be kept in mind that the appellate power to interfere with the finding of fact is not available while exercising jurisdiction under Section 115 of CPC. Scope of Section 115 was considered by the Apex Court in the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India and it has been held in para 44 of the judgment that the scope under Section 115 of CPC is limited and the cases are to be examined strictly under the provisions of Section 115, CPC within the four corners of the Section 115, CPC and the revisional Court must only be satisfied that the orders passed are within jurisdiction under Section 115, CPC, the Court can examine:
(i) the jurisdictional error,
(ii) that the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.
17. Further the proviso to Section 115 of CPC specifically lays down that the High Court shall not, under this Section, follow or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding except where:
(a) the order if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or
(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.
18. We may further reiterate that for examining the correctness of the award, scope of Section 115. CPC is limited and the award passed will not be disturbed unless following grounds are made out by the petitioner:
(i) the award so passed is without jurisdiction or in excess of jurisdiction vested with the Tribunal.
(ii) the award so passed, if allowed to stand would occasion in failure of justice or cause irreparable injury to the party against whom it was made.
Some illustrations wherein the cases under these categories can be examined are as under:
(i) award where insurance policy has not been issued by the Insurance Company.
(ii) Tribunal has recorded a finding that injuries received by the Claimant are not caused during the use or arising out of use of motor vehicle yet compensation is awarded.
(iii) Where owner of the vehicle feels that Insurance Company has been improperly exonerated from payment of compensation.
(iv) Claimant may claim the amount of compensation such as loss of suffering or medical treatment which has not been awarded by the Claims Tribunal though sufficient evidence is available on record.
19. Thus, as discussed above, the Tribunal is a Civil Court and if appeal is expressly barred under the provisions, then legality and propriety of the order can be examined in exercise of jurisdiction under Section 115, CPC. The question of law is accordingly answered as under:
In the case where remedy of appeal is not available under Section 173(2) of the Motor Vehicles Act, 1988, aggrieved party has a remedy of revision under Section 115 of CPC.
20. We hold that since the alternative efficacious remedy under Section 115 of the CPC is available, therefore, remedy under Articles 226 and 227 of the Constitution is not available to assail an award passed by the Tribunal where value in the claim is less than Rs. 10,000/- before this Court.
21. In the result. Writ Petition No. 4987/ 2003 is dismissed as not maintainable. Civil Revisions be listed before the appropriate Bench for their adjudication, in accordance with law.