Calcutta High Court (Appellete Side)
United India Insurance Co. Ltd vs Netai Chandra Ghosh & Ors on 16 May, 2008
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Appellate/Revisional/Civil Jurisdiction
Present:
The Hon'ble Mr. Justice Bhaskar Bhattacharya
And
The Hon'ble Mr. Justice Rudrendra Nath Banerjee
F.M.A. No. 419 of 1999
With
C.A.N. 1211 of 2008
United India Insurance Co. Ltd.
Versus
Netai Chandra Ghosh & Ors.
For the Appellant/Petitioner: Mr Kamal Krishna Das.
For the Respondent/Opposite Party: Mr Jayanta Kumar Mondal.
Heard on: 02.05.2008.
Judgment on: 16th May, 2008.
Bhaskar Bhattacharya, J.:
Instead of disposal of the application, we propose to hear out the appeal itself, as a pure question of law has arisen for determination in this appeal.
This appeal is at the instance of the Insurance Company and is directed against an award dated 25th February, 1999 passed by the learned Judge, Special Court, E.C. Act and Additional District Judge at Alipore, in M.A.C. Case No.29 of 1998 thereby disposing of the claim- application by directing the Insurance Company to pay a sum of Rs.54,290/- to the claimant. It was further stipulated in the Award that if the amount was not paid within two months from the date of the Award, the claimant would be entitled to get interest at the rate of 10 percent per annum upon the said amount from the date of Award till the realisation of the full amount.
Being dissatisfied, the Insurance Company has come up with the present appeal.
There is no dispute that this is a case of partial disablement to the extent of 15 percent and the learned Tribunal below, after taking into consideration the income of the claimant as well as his age, came to the conclusion that the net amount of compensation should be Rs.33,750/. After arriving at such figure, the learned Tribunal held that the Schedule II of the Motor Vehicles Act, 1988 provided that the compensation should not be less than Rs.50,000/- and therefore, according to the Tribunal, the claimant was entitled to get Rs. 50,000/-, the minimum amount of compensation provided under the Act plus medical expenditure amounting to Rs.3,290/- in addition to the general damages to the extent of Rs.1,000/- for pain and suffering. Accordingly, the Tribunal awarded a sum of Rs.54,290/- as the total amount of compensation.
Being dissatisfied, the Insurance Company has come up with the present appeal.
Mr Das, the learned advocate appearing on behalf of the Insurance Company, submitted that the learned Tribunal below erred in law in holding that according to the Schedule II of the Motor Vehicles Act, Rs.50,000/- should be the minimum amount of compensation even in case of partial disablement. Mr Das points out that the minimum amount of compensation fixed at Rs.50,000/- is applicable only in the cases of fatal accidents and therefore, according to him, the learned Tribunal ought to have awarded total amount of compensation of Rs.33,750/-, (as assessed by him) + Rs.3,290/- (medical expenses) + Rs.1,000/- (damages for pain and sufferings) = Rs.38,040/-. He, therefore, prays for modification of the Award to that extent.
Mr Mondal, the learned advocate appearing on behalf of the claimant has, however, opposed the aforesaid contention of Mr Das and has taken a preliminary objection as to the maintainability of the present appeal. Mr Mondal submits that in this case, undisputedly no permission in terms of Section 170 of the Motor Vehicles Act having been taken, the Insurance Company is not entitled to prefer any appeal disputing the quantum of compensation. He submits that if any appeal is preferred by the Insurance Company without taking such permission from the Tribunal, its attack to the Award should be confined to the points mentioned in Section 149(2) of the Motor Vehicles Act.
In reply, Mr Das submits that his client does not dispute any of the findings recorded by the Tribunal as regards the age of the victim, the extent of disablement, the income of the claimant or the involvement of the vehicle. His only grievance is that the learned Tribunal below erred in law in misinterpreting the Schedule II of the Motor Vehicles Act by holding that even in case of partial disablement, Rs.50,000/- is the minimum amount. He, therefore, submits that his client is entitled to maintain the appeal on the aforesaid point as the Tribunal has committed a jurisdictional error. In support of such contention, Mr Das refers to the decision of the Supreme Court in the case of New India Assurance Co. Ltd. vs. Smt. Shanti Pathak & Others reported in A.I.R. 2007 SC 2649.
Mr Mondal, on the other hand, in support of his contention, has relied upon the decisions of the Supreme Court in the cases of (1) R. Mannakatti & Anr. Vs. M. Subramanian & Anr reported in 2006(2) T.A.C. 515 and (2) National Insurance Co. Ltd. vs. Nicolletta Rohtagi & Ors. reported in (2003) 1 WBLR (SC)
1. He also relies upon a Full Bench decision of our Court in the case of New India Assurance Co. Ltd. vs. Smt. Tara Sundari Phauzdar & Ors. reported in 2003 (2) CLJ 284.
Therefore, the only question that falls for determination in this appeal is whether the Insurance Company is entitled to take the plea in this appeal that the learned Tribunal below misread the Schedule II of the Motor Vehicles Act in arriving at the conclusion that the minimum compensation payable even in case of partial disablement was Rs.50,000/-.
After hearing the learned counsel for the parties and after going through the decision of the Supreme Court in the cases of (1) R. Mannakatti & Anr. Vs. M. Subramanian & Anr reported in 2006(2) T.A.C. 515 and (2) National Insurance Co. Ltd. vs. Nicolletta Rohtagi & Ors. reported in (2003) 1 WBLR (SC) 1, we find that there is hardly any scope of doubt that in an appeal preferred by the Insurance Company, where no permission in terms of Section 170 of the Act has been given to the Insurance Company, it cannot as an appellant raise any question other than those referred to in Section 149 (2) of the Act and therefore, in this appeal, there is no scope of going into the question raised by Mr Das.
In the case of New India Assurance Co. Ltd vs. Shanti Pathak (supra), relied upon by Mr Das, the Tribunal applied the multiplier of 17 after taking into consideration the fact that the age of the victim was 25 but it failed to consider that the applicant was a mother of a bachelor son and that she being aged 65, the appropriate multiplier was 5. The High Court, in appeal, refused to interfere with such Award and one of the grounds for non-interference was that no permission in terms of Section 170 of the Act was taken by the Insurance Company. The Supreme Court, however, rectified the mistake and reassessed the amount by applying the multiplier of 5. In the said decision, the Apex Court, however, did not deal with the point whether in the absence of permission under Section 170 of the Act such point affecting quantum can be raised. A proposition of law laid down by the superior Courts is treated to be precedent but what necessarily follows from it or logically deduced therefrom, although not laid down specifically, cannot be treated as a precedent. (See Inderpreet Singh Kahlon vs State of Punjab reported in A.I.R. 2006 SC 2571). Therefore, the said decision cannot be taken to be a precedent in support of the proposition of law that even in the absence of any permission under Section 170 of the Act, the Insurance Company can challenge the quantum of the compensation notwithstanding the fact that the points involved therein did not come within the purview of Section 149(2) of the Act. Even the earlier decisions of the said Court taking a specific contrary view, as relied upon by Mr Mondal, were not taken note of.
It is now a settled law that a right of appeal is a creature of Statute and its scope is determined by the Statute. If the legislature decides to grant only a limited right, the Appellate Court and the appellant are bound by such limit.
We are quite conscious that in a given situation, due to the restriction imposed by the Motor Vehicles Act, the Insurance Company may not be able to prefer an exhaustive appeal although it is seriously aggrieved by the Award due to some gross illegality committed by the Tribunal, yet, we are unable to accept the contention of Mr Das, the learned advocate for the appellant, that in those situations the Insurance Company will be totally remediless. If the illegality, mentioned above, is of such a nature that it is a fit case for invocation of the jurisdiction under Article 227 of the Constitution of India, the Insurance Company can definitely move the High Court under Article 227 of the Constitution of India challenging the Award. For instance, if a Tribunal disposes of a claim-application ex parte on the assumption that in spite of service of notice, the Insurance Company did not contest the proceedings, but in fact, the office of the Tribunal even did not issue any notice to the Company, the insurer can definitely complain before the High Court pointing out the illegality committed by the Tribunal under Article 227 of the Constitution. Similarly, if the Tribunal, while calculating the amount of compensation, decides to accept the notional income of the deceased as Rs.1,00,000/- per annum although the Statute prescribes the same to be only Rs.15,000/- per annum, the Insurance Company can certainly invoke the jurisdiction of the High Court under Article 227 of the Constitution of India. We do not want to give further examples. The fact remains that the right of a litigant to move the High Court under Article 227 of the Constitution of India cannot be taken away by enacting any statutory provision and such right is available even if the right of appeal is totally barred by the Statute. In this connection, we may profitably refer to the following observations of the Apex Court in the case of L. Chandrakumar vs. Union of India reported in A.I.R. 1997 SC 1125 where a Bench consisting of seven Judges while considering the question of ouster of jurisdiction of the High Courts under Article 227 of the Constitution of India by creation of Tribunals under Articles 323A or 323B of the Constitution of India made the following observations:
"We also hold that the power vested in the High Courts to exercise judicial superintendence over the decisions of all Courts and Tribunals within their respective jurisdictions is also part of the basic structure of the Constitution. This is because a situation where the High Courts are divested of all other judicial functions apart from that of constitutional interpretation, is equally to be avoided."
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"In view of the reasoning adopted by us, we hold that clause 2(d) of Article 323A and Clause 3 (d) of Article 323B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the "exclusion of jurisdiction" clauses in all other legislations enacted under the aegis of Article 323A and 323B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution."
At this juncture, we are also quite alive to the decision of the three- Judges-Bench of the Apex Court in the case of Sadhana Lodh vs. National Insurance Co. Ltd and another reported in A.I.R. 2003 SC 1561 where the said Bench held that by taking recourse to the provision of Article 227 of the Constitution of India the scope of an appeal by the Insurance Company cannot be enlarged. In other words, the Apex Court held that the points other than those prescribed under Section 149(2) of the Motor Vehicles Act could not be taken by the Insurance Company in guise of an application under Article 227 of the Constitution of India. The said decision and the other similar decisions, in our view, should not be interpreted to mean that even in a genuine case, where the ingredients of exercising the superintending jurisdiction of the High Court are present, the High Court is powerless because of the prohibition of Section 149(2) of the Act to interfere with the Award.
In the said case of Sadhana Lodh (supra), that the Apex Court was conscious of such power of the High Court and the remedy of an aggrieved litigant under Article 227 of the Constitution of India will appear from the following observations made in paragraph of 7 the judgement:
"The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior Court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or re-weigh the evidence upon which the inferior Court or Tribunal purports to have passed the order or to correct errors of law in the decision."
Therefore, notwithstanding the bar created under Section 149(2) of the Act which is applicable only to an appeal preferred under Section 173 of the Act, an Insurance Company will be entitled to challenge an Award as illegal only if the Company can show that the illegality in the Award comes within the parameters of the exercise of jurisdiction under Article 227 of the Constitution of India as mentioned above by the Apex Court in the case of Sadhana Lodh (supra). If we hold otherwise, such interpretation will deprive a litigant of his right guaranteed under the Article 227 of the Constitution of India which is the basic structure of our Constitution as pointed out in the case of L. Chandrakumar (supra).
In this connection, it will not be out of place to refer to the following observations of the Supreme Court in the recent decision in the case of Kishore Kumar Khaitan v. Praveen Kumar Singh reported in A.I.R. 2006 SC 1474 where the Apex Court reiterated the scope of Article 227 of the Constitution of India in further details:
"The jurisdiction under Article 227 of the Constitution may be restrictive in the sense that it is to be invoked only to correct errors of jurisdiction. But when a court asks itself a wrong question or approaches the question in an improper manner, even if it comes to a finding of fact, the said finding of fact cannot be said to be one rendered with jurisdiction and it will still be amenable to correction at the hands of the High Court under Article 227 of the Constitution. The failure to render the necessary findings to support its order would also be a jurisdictional error liable to correction."
We, thus, are not at all impressed by the submission of Mr Das that his client is totally remediless.
We, consequently, find no substance in the contention of Mr Das that in this appeal we should enter into the question raised by him notwithstanding the fact that his client did not get any permission in terms of Section 170 of the Act before the Tribunal below and the same does not relate to any of the points referred to in Section 149(2) of the Act.
We make it clear that we have not gone into the question whether the point raised by appellant in this appeal comes with the purview of Article 227 of the Constitution of India as the same is beyond the scope of this appeal.
It is needless to mention that the dismissal of this appeal will not stand in the way of the appellant in seeking appropriate remedy before the appropriate forum in accordance with law.
Accordingly, the appeal is, thus, dismissed. In the facts and circumstances, there will be, however, no order as to costs.
( Bhaskar Bhattacharya, J. ) I agree.
( Rudrendra Nath Banerjee, J. )