Jharkhand High Court
M/S Oriental Insurance Company vs Bodya Oraon & Anr. on 28 August, 2017
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 1975 of 2007
M/s Oriental Insurance Company Limited, having its Branch at
Ved Narayan Bhawan, Kutchery Road, Ranchi through Sri Manoj
Kumar Singh, son of Sri B.B. Singh, the Incharge, Legal Cell,
O.I.C. Ltd., AtKutchery Road, D.O.I, P.O. & P.S.Ranchi, District
Ranchi, resident of New A.G. Colony, P.O. & P.S.Argora, District
Ranchi ... ... Petitioner
Versus
1. Bodya Oraon, son of Late Somra Oraon, resident of Village
Jido, P.O. & P.S.Kuru, DistrictLohardaga, at present residing at
VillagePiska More, Ratu Road, P.O.Ratu, P.S.Sukhdeo Nagar,
DistrictRanchi
2. Md. Imtiyaz, son of Md. Idrish, resident of VillageAmla Toli,
Lohardaga, P.O., P.S. & DistrictLohardaga... ... Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
For the Petitioner : Mr. Abhay Kumar Mishra, Advocate
For the Respondents : Mr. Ashutosh Anand, Advocate
Order No. 11 Dated: 28.08.2017
Heard the learned counsel for the parties.
2. The present writ petition has been filed for quashing
the order dated 06.09.2006 passed by the Permanent Lok Adalat,
Ranchi (hereinafter referred as PLA) in P.L.A Case No. 151 and
152 of 2005, whereby applications filed under Section 22C of the
Legal Services Authority Act, 1987 (hereinafter referred to as "the
Act, 1987") read with Sections 140 and 166 of Motor Vehicle Act,
1988 (hereinafter referred to as "the Act of 1988") were allowed
directing the petitioner to pay compensation of Rs. 2,68,000/
along with interest @ 9% to the respondent no. 1 from the date of
filing of the application till the actual date of payment.
3. The factual background of the case is that one Bodya
Oraon (respondent no. 1 herein) filed applications under Section
22C of the Act, 1987 r/w Sections 140 and 166 of the Act of
1988 before PLA, Ranchi being P.L.A Case Nos. 151 of 2005 and
152 of 2005. In the said claim petitions, the respondent no. 1
2
claimed that on 23.12.2004, her mother Modail Orain was
travelling on the truck bearing registration no. BR42G7347 and
was going to the house from Lohardaga and while on the way, the
truck got imbalanced and dashed one Armada Jeep resulting into
death of Modail Orain. The petitioner appeared in that case and
filed written statement raising maintainability of the applications
before the Permanent Lok Adalat. However, the PLA framed the
issues, took evidence and finally decided the cases on merit
directing the petitioner to pay compensation of Rs.2,68,000/ with
interest @ 9% from the date of filing of the applications in favour
of the respondent no. 1 on account of death of Modail Orain, but
the petitioner was held entitled to recover the said amount from
the owner of the Truck (respondent no. 2 herein). It is further
held that the dispute relates to transport of passengers by road as
well as motor vehicle insurance which is a public utility service as
defined under Section 22C of the Act of 1987.
4. The learned counsel for the petitioner has questioned
the jurisdiction of the PLA to entertain claim under Sections 140
and 166 of the Motor Vehicle Act, 1988 as the Accident Claims
Tribunal has been established under Section 165 of the Act, 1988
which has been especially conferred with the jurisdiction to decide
an application under Sections 140 and 166 of the Act, 1988 and
not before any other authority. It is further submitted that the
impugned order is wholly without jurisdiction as the Lok Adalat
constituted under the Act, 1987 is not vested with the authority to
decide contentious issue unless there is consent of the parties to
the dispute. The PLA has no jurisdiction to decide a claim on merit
and under Section 22C of the Act, 1987, the PLA has been
empowered to entertain only the claim of prelitigation
conciliation and settlement. In support of his contention, the
learned counsel for the petitioner relies on the following
judgments of this court:
3
(i) National Insurance Co. Ltd. Vs. Niwas Chandra
Chakravarty (W.P.C No. 3032 of 2010),
(ii) National Insurance Co. Ltd. Vs. Tulsi Bannerjee
& Ors. (W.P.C No. 3042 of 2010).
5. Per contra, the learned counsel for the respondents
submits that the PLA is well within the jurisdiction to entertain an
application under Sections 140 and 166 of the Act, 1988 and also
to decide the claim on merit. The learned counsel further submits
that Section 22C (7) of the Legal Services Authority Act, 1987 is
not a mandatory provision, rather it is directory in nature, which
would be apparent from the language of Section 22C (7) of the
Act, 1987. It is further submitted that the petitioner has not made
any specific statement in the writ petition that the procedure
required to be followed by the PLA in terms with Section 22C (4)
to (7) of the Act, 1987, has not been followed. It is further
submitted that the provisions of Section 22C of the Act, 1987 does
not mandate the requirement of written consent by the parties to
the dispute. The learned counsel puts emphasis on the observation
made by the Hon'ble Division Bench in this case vide order dated
30.04.2012to the effect that the PLA after following the procedure of making all efforts of settlement and upon failing of the parties to arrive at settlement and procedure to adjudicate under subsection (8) Section 22C of the Act of 1987 can adjudicate upon the dispute. Relying on these observations, the learned counsel submits that the judgment rendered by a Single Bench of this Court in the case of "State Bank of India, Dhanbad Vs. State of Jharkhand & Anr." reported in 2009 (3) JCR 374 (Jhr), cannot be said to be a good law. It is also submitted that the claimant cannot be deprived of the benefits provided under Motor Vehicles Act on the technical grounds, as has been agitated by the petitioner in the present writ petition. The learned counsel for the respondents puts reliance on the following judgments:
(i) United India Insurance Co. Ltd. Vs. Mananand 4 Rawani & Anr. (L.P.A No. 281 of 2006)
(ii) National Insurance Co. Ltd. Vs. Vijay Kumar Sharma & Ors. (W.P.C No. 7066 of 2006)
(iii) M/s Oriental Insurance Co. Ltd. Vs. Manju Devi & Anr. (W.P.C No. 5280 of 2008)
6. Having heard the learned counsel for the parties and on going through the relevant documents placed on record, it appears that the learned counsel for the respondents puts reliance on three judgments of this Court. In the case of "United India Insurance Co. Ltd." (Supra.), a Division Bench of this court has held that the PLA has got jurisdiction to deal with the motor accident claim cases. In the case of "National Insurance Co. Ltd."
(Supra), a Bench of this Court held that the insurance company cannot escape from it's liability to pay the claim to the third party respondents saying that the insurance service will not include the third party claim. Further, in the case of "M/s Oriental Insurance Co. Ltd." (Supra), a Bench of this Court held the order passed by the PLA under Section 140 of the Act, 1988 within jurisdiction observing that the provision under Section 140 of the Act, 1988 is intended to provide interim compensation to the family of the victim and the same amount is subject to adjustment in final compensation under Section 166 of the Act, 1988. Having relied upon the aforesaid judgments, the learned counsel for the respondents has tried to justify the order of the PLA on the ground that the Lok Adalat has jurisdiction to entertain the claim under Sections 140 and 166 of the M.V. Act.
7. The issue as to whether the PLA has jurisdiction to decide motor accidental claim is no more resintegra, as this court in a series of judgments has decided that the PLA is competent to entertain cases under Sections 140 and 166 of the M.V Act, but the same has to be dealt with in accordance with the procedure laid down under Section 22C of the Act, 1987.
8. The learned counsel for the petitioner has also cited 5 two judgments rendered in the case of "National Insurance Co. Ltd. Vs. Niwas Chandra Chakravarty" (supra) and "National Insurance Co. Ltd. Vs. Tulsi Bannerjee & Ors." (supra). In both the cases, the judgment of "State Bank of India, Dhanbad Vs. State of Jharkhand & Anr." (supra) has been relied upon and the same view has been reiterated.
9. In the case of "State Bank of India, Dhanbad"
(Supra), a Bench of this Court in para 6(viii) held as under: "6 (i) .................................................................
.................................................................
(viii) Looking to the scheme of the Act, it appears that any of the parties to a dispute can make an application to a Permanent Lok Adalat for settlement of the dispute, as per Subsection (1) of Section 22C of the Act. Thus, any complex matter may come to the Permanent Lok Adalat unilaterally, upon an application by a single party, or without a joint application by the parties to the dispute also, any party can prefer an application before the Permanent Lok Adalat for settlement of the dispute and, therefore, Permanent Lok Adalat ought to follow, as stated hereinabove, the procedure and the requirement of Subsection (7) of Section 22C of the Act, 1987, and if no settlement is arrived at, then again, option should be given to the parties to the dispute, after making them aware of the nonapplicability of the provisions of the Code of Civil Procedure and the provisions of Indian Evidence Act and also that there shall be no appeal against the award, passed by the Permanent Lok Adalat, and even after this awareness, if both the parties give consent that Permanent Lok Adalat may decide the dispute on merits, then only Permanent Lok Adalat shall exercise powers under Subsection (8) of Section 22C of the Act, 1987, but if one of the parties is refusing for adjudication, on merits, of the dispute by Permanent Lok Adalat, it shall not decide the dispute on merits. The primary role of the permanent Lok Adalat is settlement and it can wear a robe of the court for playing adjudicatory role, only upon consent of all the parties to the dispute and not otherwise."
10. The present case was also referred to the Division 6 Bench in view of conflicting judgments of this Court with respect to the jurisdiction of PLA and finally, vide order dated 30.04.2012, the reference was answered as under: "4. In view of the above, it is held that the Permanent Lok Adalat after following the procedure of making all efforts of settlements and upon failing of the parties to arrive at settlement and procedure to adjudicate u/s 8 of Section 22 (C) of the Act of 1987 can adjudicate upon the dispute."
11. It follows from the conjoint reading of the judgment rendered in the case of "State Bank of India" (supra) and the order dated 30.04.2012 passed by the Division Bench of this Court in the present case that though the PLA can adjudicate upon the dispute raised before it, but before entering into the merit of the case, it has to follow the procedure and requirement of subsection (7) of Section 22C of the Act, 1987 for making all the efforts of settlement of the dispute, and if no settlement is arrived at, then again the parties should be made aware about the legal position of the procedure and effect of the adjudication and if both the parties give consent that the PLA may decide the dispute on merits, then only PLA shall exercise powers under subsection (8) of Section 22C of the Act, 1987. However, if one of the parties refuses for adjudication of the dispute on merit by the PLA, it shall not decide the dispute on merit.
12. Thus, the main issue for consideration before this Court is whether the PLA has followed the procedure laid down under Section 22C of the Act, 1987 while deciding the claim of the respondent no.1.
13. Now, coming back to the case in hand. None of the parties has brought on record the entire ordersheet of the PLA. Thus, it is only the impugned order available before this Court which is looked into to examine as to whether the PLA has made all efforts for settlement of the dispute and the requirement of 7 Section 22(C)(4) to (7) has been followed. In the impugned order dated 06.09.2006, while deciding the issue no.1 as to whether the claim of the applicant is maintainable, it has been observed by the court below that since the opposite parties were not agreeable to conciliate the dispute with the applicant at prelitigation stage and since the dispute relates to transport of passengers by road as well as motor vehicle insurance which is public utility service as defined under Section 22A of the Act, 1987, the claim application is maintainable. The impugned order dated 06.09.2006 does not indicate that the PLA has taken all possible steps to settle the dispute and after failure of settlement, it has again taken consent of the parties before deciding the claim on merit. The argument of the learned counsel for the respondents is unfounded for the reason that the entire scheme of section 22C of the Act, 1987 manifest that the PLA is initially having role of a conciliator which is nonadjudicatory in nature and only if, the parties fail to reach an agreement through conciliation, the role of PLA converts into an adjudicatory body, by assuming the function of adjudicator.
14. In view of the aforesaid discussion, I am of the considered view that the impugned order dated 06.09.2006 has been passed by the PLA, Ranchi without observing the requirement of Section 22C (7) of the Act, 1987 and thus, the same cannot be legally sustained.
15. The writ petition is, therefore, allowed. The impugned award dated 06.09.2006 passed by the Permanent Lok Adalat, Ranchi in P.L.A Case No. 151 and 152 of 2005 is quashed and setaside. However, the respondents are at liberty to take appropriate recourse as provided under law.
16. The writ petition is accordingly disposed of with the aforesaid observation.
(Rajesh Shankar, J.) Manish/A.F.R.