Regional Manager,New India Assurance ... vs Most. Shanti Devi & Ors on 10 March, 2010

[Cites 17, Cited by 4]

Patna High Court - Orders

Regional Manager,New India Assurance ... vs Most. Shanti Devi & Ors on 10 March, 2010

Expressing doubt with regard to the view expressed in the decision rendered in Oriental Insurance Company Ltd. V. Firangi Ram & Ors., 2008 (1) PLJR 280, a learned single Judge recommended the matter to be dealt with by a larger Bench and, accordingly, the Bench 19 has been constituted and the matter has been placed before us.

2. Though no question of reference has been framed, yet the singular question that emanates for consideration is whether an application under Section 163 or 166 of the Motor Vehicles Act, 1988 (for brevity `the Act') can be entertained and delineated by the Fast Track Court in view of the language employed under Section 165 of the Act.

3. In Firangi Ram & Ors. (supra), the learned single Judge in paragraph 6 of the decision has held thus:

"6. Considering the aforesaid averments of the parties and the materials on record, it is quite apparent that the claim of the policy of 1981 mentioned by the owner of the vehicles in his written statement filed in the Fast Track Court is not supported by any materials whatsoever and the insurance company has specifically denied existence of any such policy and furthermore the said question has not even been considered by the learned Fast Track Court. The learned Fast Track Court has not considered the provisions of the relevant Act and its applicability to the instant case with respect to the extent of liability of the Insurance Company for the payment of compensation. Furthermore, it is not apparent nor there is any material to show that the Fast Track Court which has decided the matter has been authorized to hear claim cases as a Tribunal by any Government notification."

4. We have reproduced the said paragraph as the learned single Judge has only stated that there is no material to show that the Fast Track Court which has decided the matter has been authorised to hear the claim cases as a tribunal by any government notification. What has weighed with the learned single Judge is that there is no government notification authorising the Fast Track Court to hear the claim cases as envisaged under Section 163 and 166 of the Act.

5. In this context we may refer to Section 165 of the Act deals which deals with the Claims Tribunals. It reads as under:

"165. Claims Tribunals.- (1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereafter in this Chapter referred to as Claims Tribunal) 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.

Explanation.- 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 21 under section 140 and section 163A.

(2) 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.

(3) A person shall not be qualified for appointment as a member of a Claims Tribunal unless he-

(a) is, or has been, a Judge of a High Court, or

(b) is, or has been a District Judge, or

(c) is qualified for appointment as a High Court Judge or as a District Judge.

(4) Where two or more Claims Tribunals are constituted for any area, the State Government, may by general or special order, regulate the distribution of business among them."

6. The aforesaid provision is pari materia with Section 110 of the Motor Vehicles Act, 1939. A Full Bench of this Court in the case of Anirudh Prasad Ambasta & ors. v. The State of Bihar & anr., 1990 PLJR 1 (FB), has held thus:

"10. By notification, copy of which is Annexure-3, dated 17th December, 1982 published in Bihar Gazette on that date, in some of the district headquarters seniormost Additional District and Sessions Judges of respective districts including the seniormost Additional District and Sessions Judges of Jamshedpur within the judgeship of Singhbhum were appointed as members of the Claims Tribunals, to be known as 22 Additional Motor Accident Claims Tribunals. It was ordered that all claim cases shall be filed before the Claims Tribunals who have power to transfer such cases to the Additional Motor Accidents Claims Tribunal except in respect of claims arising within the territorial limits of Dalbhum Subdivision within the judgeship of Singhbhum in which case filing of claims shall be made before the Additional Motor Accident Claims Tribunal of Jamshedpur. It cannot, therefore, be disputed that Claims Tribunals at all the district headquarters of the different judgeships and the Additional Claims Tribunals at certain district headquarters and in Dalbhum Subdivision were constituted by notifications published in the Bihar Gazettee in accordance to section 110 of the Act. That answers the first question.

11. With regard to appointment of members, it will be noticed from those notifications that the District Judges including the Judicial Commissioner for their respective areas were appointed members of the Claims Tribunal. In some of the districts and Dalbhum Subdivision, the seniormost Additional District and Sessions Judge posted there were also appointed members of the Claims Tribunals and such Claims Tribunals were designated as Additional Motor Accident Claims Tribunals. Under section 110(3) of the Act, a person who is or has been a District Judge is eligible for appointment as member of the Claims Tribunals.

12. Under Article 236 of the Constitution, District Judge includes Additional District Judge. The District Judges and the Additional District Judges belong to the same cadre. Section 110 provides for appointment of a person who is a District Judge or has been a District Judge. In C.W.J.C. No. 7492 23 of 1988 the observation of the Bench that sitting District Judge cannot be appointed member has been made as it missed to notice that a person who is a District Judge may also be appointed member of Claims Tribunal. It must be held that all persons who are District Judges and Additional District Judge are qualified for appointment as members of the Claims Tribunals and their appointment is valid. This answers the second question."

7. From the aforesaid enunciation of law it is clear as crystal that an Additional District Judge has been notified to have the status of Motor Accident Claims Tribunal. There can be no scintilla of doubt that the said position remains after Section 165 of the Act has come into force under the 1988 Act. It is submitted by Mr. Ashok Priyadarshi, learned counsel for the Insurance Company, that there has been no notification appointing Fast Track Court Judges as Tribunals and, hence, they cannot be regarded as Additional District Judges inasmuch as there is a notification by the High Court that they are ad hoc Additional District Judges.

8. Per contra, Mr. Lalit Kishore, learned Additional Advocate General-III has submitted that the Additional District Judges, even if they are ad hoc, can function as Tribunals within the parameter of Section 165 24 of the Act as they are de facto Additional District Judges for all purposes.

9. The Apex Court in the case of Brij Mohan Lal v. Union of India & Ors., (2002) 5 SCC 1, while dealing with the jurisdiction of the Fast Track Court, has held thus:

"9. One of the pleas taken by the parties questioning constitutional validity of the Fast Track Courts Scheme is that the Constitution does not envisage establishment of Fast Track Courts. This plea is clearly without any substance. As observed by a nine-Judge Bench of this Court in Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441, appointment of a person to be a District Judge rests with the Governor, but he cannot make the appointment unless there has been an effective and meaningful consultation with the High Court or the High Court has recommended the appointment. In order that the requirement of consultation does not end up as an empty formality, in the event of difference of opinion, there must be an effective interchange of viewpoints. In cases governed by Article 233(2), as a matter of rule, the High Court's recommendation must be accepted. Departure from the opinion of the High Court should be a rare event. The Constitution relies on the collective wisdom of the High Court as a body and not that of any single individual.

Though the Fast Track Courts Scheme is envisaged by the Central Government on the basis of the views indicated by the Finance Commission, yet appointments to the Fast Track Courts are to be made by the High Court keeping in view the modalities set out. 25 Therefore, merely because the suggestion has stemmed from the Central Government, it cannot be said that there has been any violation of any constitutional mandate. It is to be noted that Chapter VI of the Constitution deals with subordinate courts. While Article 233 relates to the recruitment of the District Judges, Article 234 relates to the recruitment of members of the judicial service of the State other than District Judges. The power of appointment under Article 234 does not include the power to confirm the promotion of judicial officers other than judicial officers which is vested exclusively in the High Court by Article 234 (sic 235). Any rule which provides that the authority belongs to the Governor in consultation with the High Court, shall be void, as observed by this Court in State of Assam v. S.N. Sen, (1971) 2 SCC 889. While the promotion of District Judges shall be in the hands of the Governor acting in consultation with the High Court in terms of Article 235, the posting and promotion etc. of officers of the State Judicial Services other than the District Judges lie exclusively in the hands of the High Court. The word "control" referred to in Article 235 is used in a comprehensive sense to include general superintendence of the working of the subordinate courts. In others words the control vested in the High Court under this article is complete control, subject only to the power of the Governor in the matter of appointment and promotion of District Judges. The provision under this article is to ensure independence of the judiciary. The above being the position there is nothing constitutionally improper in the Scheme. It is the High Court which has to play a pivotal role in the implementation of the Scheme for its effective implementation and achievement of the above objectives, of course, complying with the constitutional 26 requirements embodied in the relevant provisions of Chapter VI of the Constitution."

10. After so holding their Lordships issued certain directions, some of which are necessitous to be reproduced to appreciate the role of the Fast Track Court:

"1. The first preference for appointment of judges of the Fast Track Courts is to be given by ad hoc promotions from amongst eligible judicial officers. While giving such promotion, the High Court shall follow the procedures in force in the matter of promotion to such posts in Superior/Higher Judicial Services.

2. No judicial officer who was dismissed or removed or compulsorily retired or made to seek retirement shall be considered for appointment under the Scheme. Judicial officers who have sought voluntary retirement after initiation of department proceedings/inquiry shall not be considered for appointment.

3. After ad hoc promotion of judicial officers to the Fast Track Courts, the consequential vacancies shall be filled up immediately by organizing a special recruitment drive. Steps should be taken in advance to initiate process for selection to fill up these vacancies much before the judicial officer are promoted to the Fast Track Courts, so that vacancies may not be generated at the lower levels of the subordinate judiciary. The High Court and the State Government concerned shall take prompt steps to fill up the consequential as well as existing vacancies in the subordinate courts on priority basis. The State Government concerned shall take necessary decisions within a month from the receipt of 27 the recommendations made by the High Court.

4. Priority shall be given by the Fast Track Courts for disposal of those sessions cases which are pending for the longest period of time, and/or those involving undertrials. Similar shall be the approach for civil cases i.e. old cases shall be given priority.

5. While the staff of a regular Court of Additional District and Sessions Judge includes a Sessions Clerk and an Office Peon, work in Fast Track Courts is reported to be adversely affected due to shortage of staff as compared to regular courts performing same or similar functions. When single Orderly or Clerk proceeds on leave, work in Fast Track Courts gets held up. The staff earmarked for each such court are a Peshkar/Superintendent, a Stenographer and an Orderly. If the staff is inadequate, the High Court and the State Government shall appropriate decision to appoint additional staff who can be accommodated within the savings out of the existing allocation by the Central Government.

6. Provisions for the appointment of Public Prosecutor and Process Server have not been made under the Fast Track Courts Scheme. A Public Prosecutor is necessary for effective functioning of the Fast Track Courts. Therefore, a Public Prosecutor may be earmarked for each such court and the expenses for the same shall be borne out of the allocation under the head "Fast Track Courts". Process service shall be done through the existing mechanism.

7. No right will be conferred on judicial officers in service for claiming any regular promotion on the basis of his/her 28 appointment on ad hoc basis under the Scheme. The service rendered in Fast Track Courts will be deemed as service rendered in the parent cadre. In case any judicial officer is promoted to higher grade in the parent cadre during his tenure in Fast Track Courts, the service rendered in Fast Track Courts will be deemed to be service in such higher grade.

8. The retired judicial officers who are appointed under the Scheme shall be entitled to pay and allowances equivalent to the pay and allowance they were drawing at the time of their retirement, minus total amount of pension drawn/payable as per rules."

11. Once a Judge, Fast Track Court, needless to say, is selected from amongst the Civil Judges (Senior Division) and carries judicial functions which are to be carried out by an Additional District Judge-cum- Additional Sessions Judge then, for all purposes, he is an Additional District & Sessions Judge though he is an ad hoc Additional District Judge. As far as the jurisdiction is concerned, he is no way inferior to that of the Additional District Judge and, hence, a separate notification is not necessary to confer the power of tribunal on Fast Track Judges since he enjoys the authority / jurisdiction of an Additional District Judge, which has been conferred the power of tribunal, as has been held in the case of Anirudh 29 Prasad Ambasta & ors. (supra).

12. Quite apart from the above, it is worth noting the Sub Judges have been redesignated as Civil Judges (Senior Division) and are qualified to be appointed to the cadre of District Judge. In fact, they are conferred promotions as Additional District Judges on ad hoc basis by following the procedure of screening and on the basis of `seniority-cum-suitability'. A similar procedure is adopted for appointment in Fast Track Courts to hold the post of Additional District Judges and the procedure of screening is taken recourse to. True it is, they are Additional District Judges under the Fast Track Court Scheme but, a significant one, it would neither be apposite in fact or in law to hold that they are not entitled in law to decide the controversies which an Additional District Judge is entitled under law to decide. The submission of Mr. Priyadarshi that they are not qualified to function as Claims Tribunal, as envisaged under Section 165(3) of the Act, on the foundation that they have not been notified, is sans substratum inasmuch as they are Additional District Judges for all purposes and as has been held in Anirudh 30 Prasad Ambasta & Ors. (supra) and they hold equivalent posts to deal with the lis in question. They are designated as Additional District Judges on ad hoc basis. We have already noticed hereinabove that the Apex Court in Brij Mohan Lal (supra) has authorised in no uncertain terms the Fast Track Courts to dwell upon the civil cases. The said clothing of power by the Apex Court on the Fast Track Courts goes a long way to show that even though the original concept of Fast Track Court was thought of for deciding the pendency of criminal trials in the Court of Session but regard being had to their area of operation, power and function their Lordships of the Apex Court extended the jurisdiction and in the ultimate eventuate they came to possess the jurisdiction to deal with the civil cases. It needs no special emphasis to state that the claim cases are in the compartment of civil cases and the Fast Track Courts being equal to ad hoc Additional District Judges have the authority under law to delve into the merits of the claim cases and dispose of the applications under the Act.

13. In view of the aforesaid, we are inclined to hold that the law laid down in Firangi Ram & Ors. (supra) is not correct and we, accordingly, overrule the view expressed in Firangi Ram & Ors. (supra) as far as it pertains to the jurisdiction of the Fast Track Court.

14. At this juncture, an aspect requires to be clarified. Initially, this Court on Administrative side by letter no. 7222-51 dated 10.08.2006 had authorised the ad hoc Additional District Judges posted in Fast Track Courts to dwell upon and decide the claim cases arising under the Act but by subsequent communication no. 6489-6518 dated 28.05.2008 withdrew the power from the Fast Track Courts in deciding the claim cases. It is obvious that the said letter has been issued on the basis of the decision rendered in Firangi Ram & Ors. (supra). As we have already held that Firangi Ram & Ors. (supra) does not state the law correctly, the letter issued withdrawing the power has to pave the path of extinction and we so direct.

15. Reference is answered accordingly. 32

16. Let these appeals be listed before the appropriate Bench.

( Dipak Misra, C.J. ) ( Mihir Kumar Jha, J. ) Patna High Court.

The 10th March, 2010.

AFR.

Dilip.

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Patna High Court - Orders