Karnataka High Court
The Oriental Insurance Company ... vs Thibbegowda And Others on 16 June, 1998
Equivalent citations: 2000ACJ438, ILR1998KAR3733, 1998(5)KARLJ587, 1998 A I H C 4642, (1998) 5 KANT LJ 587, (2000) 2 TAC 779, (1999) 2 ICC 149, (2000) 1 ACJ 438
ORDER
1. Heard Sri S.P. Shankar.
2. The first question which has to be satisfied by this Court is whether the Motor Accident Claims Tribunal is a Civil Court for the purpose of Section 115 of the Civil Procedure Code. Section 115 reads as under.-
"Section 115. Revision.-
The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-
(a)to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c)to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit".
A reading of this section per se reveals that the revision lies from an order passed by the Civil Court subordinate to the High Court, from which no appeal lies to the Court, provided the order suffers from jurisdictional error. It further provides and ordains that after above mentioned conditions are fulfilled unless it is shown that the order, if allowed to stand, may result in injustice and the party affected may be subjected to irrepairable loss and injury, the Court under Section 115 of the Code will not interfere with that order. The First prerequisite condition to be satisfied is whether the Motor Vehicle Accidents Claims Tribunal is a Court or not. Section 175 of the Motor Vehicles Act bars the jurisdiction of the Civil Court from entertaining any question relating to claim for compensation which may be adjudicated by the Motor Accidents Claims Tribunal. There may be situation if we deem this Tribunal to be a Civil Court, then it may come in direct conflict with the provisions of Section 175.
3. The scheme of the Constitution as per Chapter VI, Part V and Chapter XIV-A reveals that the framers of the Constitution have always considered Civil Court of Civil jurisdiction or Courts of Criminal jurisdiction on one hand and Tribunals on the other hand to be distinct entities. It is also revealed by Article 227 of the Constitution where under power of supervision and superintendence no doubt has been conferred on the High Court over every Court and Tribunal. That when the framers of the Constitution constituted Tribunals, they constituted it to be the institutions distinct from Civil and Criminal Courts and in the context of Section 175 of Motor Vehicles Act, 1988, which bars the jurisdiction of Civil Court from entertaining any question relating to compensation payable thereunder and the Tribunals have been constituted to go into the question relating to claims for compensation, then the Tribunals cannot be considered to be Civil Court or Court subordinate to High Court. Even in the case of a Criminal Court deciding a criminal case, no revision can lie to the High Court under Section 115 of Code of Civil Procedure. Revisions against the orders of Subordinate Criminal Courts may lie to High Court under Section (sic) of Criminal Procedure, but not under Section 115 of the Code of Civil Procedure. If no revision lies under Section 115 of the Civil Procedure Code, from orders passed by Criminal Courts in case, it is inconceivable that orders passed by the Tribunal such as Motor Accident Claims Tribunal or by Educational Appellate Tribunal can be subject-matter of revision jurisdiction of High Courts, under Section 115 of the Code of Civil Procedure by presuming or deeming such Tribunals to be Civil Court, specially when the Motor Vehicles Act or Karnataka Private Education Institutions Act, 1975 or Karnataka Education Act on the one hand bar the jurisdiction of Civil Court over which jurisdiction and power has been conferred to deal with on the Tribunals and the Act does not so provide that these Tribunals are to be deemed to be Civil Courts. When I so observe, I find support for my view by a decision of Full Bench of the Allahabad High Court in the case of H.C.D. Mathur, Secretary of the National Federation of Railways v E.I. Railway Administration through its General Manager, their Lordships held that.-
"As a matter of fact, the question as to what are and what are not Civil Courts falls to be determined under two enactments relating to the constitution of Civil Courts in the Province; they are the Bengal, Assam and Agra Civil Courts Act and the Oudh Courts Act. Section 3 of the former Act which occurs in Chapter II, headed 'Constitution of Civil Courts' reads as follows:
"There shall be the following classes of Civil Courts under the Act, namely, "(1) The Court of the District Judge; (2) The Court of the Additional Judge; (3) The Court of the Civil Judge; and (4) The Court of the Munsiff".
Section 21 of the Oudh Courts Act, which is to be found in Chapter III, headed 'Subordinate Civil Courts' is as follows:
"Besides the Chief Court, the Courts of Small Causes established under the Provincial Small Cause Courts Act, 1887, and the Courts established under any other enactment for the time being in force, there shall be four grades of Civil Courts in Oudh, namely, "(1) The Court of the District Judge; (2) The Court of Additional Judge; (3) The Court of the Civil Judge; and (4) The Court of the Munsiff".
"(13) Thus, while the law prevailing in the Agra Province limits the Civil Courts to the classes enumerated in the Bengal, Agra and Assam Civil Courts Act, the Oudh Act permits the creation of such Courts by other enactments. Since, inspite of the provisions of the United Provinces High Courts (Amalgamation) Order, 1948, the provisions of Section 21, Oudh Courts Act remain in force and determine the status and gradation of Courts, we will proceed to consider whether the Payment of Wages Act, does purport to create Civil Courts.
(15) Thereafter the person appointed, is throughout referred to in the Act as the 'authority' and not as the 'Court'-vide in particular Sections 19 and 21. But the conclusive test is provided by Section 22 which excludes the jurisdiction of Courts' in respect of matters entrusted to the jurisdiction of the authority under Section 15. If the legislature intended to constitute that authority into a 'Court' those words would lead to an impasse and the jurisdiction of the authority would also be excluded, which would make the whole Act absurd. In such a state of affairs, we would at least expect to find some such saving words as 'except as otherwise provided by this Act' in Section 22 but such words are not to be found. Clearly, therefore, the Legislature intended that the authority constituted under Section 15, Payment of Wages Act should not be a Court.
(16) The only provision of the Act upon which reliance could be placed for the proposition that the authority constituted under Section 15 of the Act is a Court is that Section 18 of the Act directs that, it should have certain powers of Civil Courts and that it should be treated as a Civil Court for the purpose of Section 195 and Chapter XXXV of the Criminal Procedure Code. Neither of these considerations, even when taken together, would lead to the inference that the authority is a Civil Court" ".
4. Learned Counsel for the revisionist-applicants Sri S.P. Shankar placed before me a Division Bench decision of this Court in the case of Noreen R. Srikantaiah v Dashrath Ramaiah and Others, in which case in the context of Section 24 of the Civil Procedure Code, it has been held that Tribunal is a Court and transfer of case from one Tribunal to other is permissible. Firstly, this is not a case dealing with Section 115 of Code itself. In this decision, it appears the attention of the learned Judges has not been invited and drawn to the provisions of Section 11 of the Motor Vehicles Act, 1939 pari materia of which is Section 175 of Motor Vehicles Act, 1988. When the Legislature has clearly expressed the intention of excluding the jurisdiction of the Civil Court, with reference or from to the matters covered by the Motor Vehicles Act and the Claims Tribunal have been set up to deal with the Motor Vehicles Accident Claims, to conceive or assume the Tribunal to act as Civil Court would be something which may create conflict and confusion because once the jurisdiction of the Civil Court has been excluded completely, then to consider Motor Vehicles Accidents Claims Tribunal as Civil Court will run against the very letter and spirit of provisions of Section 110-F of the Motor Vehicles Act, 1939, as well as Section 175 of the present Motor Vehicles Act of 1988. It will also run counter to the very letter and spirit and intention of the framers of the Constitution which provides two separate entities namely Courts under one chapter and Tribunals in another chapter vide Articles 323A and 323B of the Constitution, and whereby it has been provided that State Enactments constituting the Tribunals may exclude the jurisdiction of the Civil Court, from the subjects and matters entrusted to the Tribunals for determination. So, therefore, to read or to think the Tribunal as Civil Court by itself runs counter to the letter and spirit of the Constitution as well as to the provisions of Section 175 of the Motor Vehicles Act. The attention of the Hon'ble Judges constituting the Division Bench has not been invited or drawn either to the provisions of the Constitution of India dealing with Courts and Tribunals as distinct and separate entities nor to the provisions of Section 110-F of the Motor Vehicles Act of 1939 which is analogous to Section 175 of the present Motor Vehicles Act of 1988. So as held in the case of A.R. Antulay v U.S. Nayak and Another, as per the observations in paragraphs 44, 49, 64 and 138, a decision which is per incuriam loses its binding force as a precedent. A decision per incuriam has been defined in that decision. In that case, their Lordships defined the expression "per incuriam" vide paragraph 44 as under.-
"Per incuriam are those decisions given in ignorance or forgetful-ness of some inconsistent statutory provision or of some authority binding on the Court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong".
Their Lordships further observed in paragraph 49 as under.-
"It is a settled rule that if a decision has been given per incuriam the Court can ignore it".
I may also refer to the observations in paragraph 64. Their Lordships observe.-
"Though what is mentioned hereinbefore in the Bengal Immunity Company Limited v State of Bihar, the Court was not concerned with the earlier decision between the same parties. At page 623 it was reiterated that the Court was not bound to follow a decision of its own if it was satisfied that the decision was given per incuriam or the attention of the Court was not drawn".
Hon'ble Mr. Justice M.N. Venkatachaliah, J., has been pleased to make the following observations in para 138 of A.R. Antulay's case, supra, as under.-
"It is asserted that the impugned direction issued by the five Judge bench was per incuriam as it ignored the Statute and the earlier Chadda's case.
But the point is that the circumstance that a decision is reached per incuriam, merely serves to denude the decision of its precedent value. Such a decision would not be binding as a judicial precedent".
In the case of State of Uttar Pradesh v Synthetics and Chemicals Limited, Court expressed the view that a decision which is per incuriam is devoid of precedent value and has been taken so.
5. Thus considered in my opinion, so far as the question for consideration before this Court is concerned, whether the Motor Accidents Claims Tribunal is a Court for the purpose of Section 115, the decision relied by the learned Counsel for the applicants as it is per incuriam for the reason that no attention of the Court has been drawn to the provisions of the scheme under Constitution with reference to two types of institutions - Courts and Tribunals, as well as attention of the Court has not been invited to Section 110-F of the old Motor Vehicles Act which is part materia with Section 175 of the Motor Vehicles Act, 1988 and further that decisions with reference to Section 24 of the CPC. It may also be taken note of that of Section 3 of the CPC defines what are the Courts subordinate to the High Court for the purpose of CPC. I further find that the attention of the Division Bench was not invited to Section 110-D of the old Act which clearly deals with appeal and sub-section (2) of Section 110-D of the Motor Vehicles Act, 1939 which clearly provides that no appeal shall lie against any award of Claims Tribunal if the amount in dispute in appeal is less than Rs. 2,000/-. Similarly, Section 173, sub-section (2) of Motor Vehicles Act, 1988 provides no appeal shall lie against any award of Claims Tribunal if the amount in dispute in appeal is less than Rs. 10,000/-. The intention of the Legislature is revealed and comes out that it has specific intention to bar the right of a person to approach the High Court or any other Court in appeal if the value of the claim in appeal is less than Rs. 2,000/- as per old Act and less than Rs. 10,000/-as per the present Act. This intention of the Legislature is expressly provided and revealed that Tribunal is not a Civil Court and the revision if it allowed to be filed treating Tribunal to be Court it runs against the intention of the Legislature. What is revisional jurisdiction has well heen explained in the case of Shankar Ramchandra Abhyankar v Krishnaji Dattatraya Bapat, their Lordships observed as under.-
"It would appear that their Lordships of the Privy Council regarded the revisional jurisdiction to be a part and parcel of the appellate jurisdiction of the High Court. This is what was said in Nagendra Nath Dey v Suresh Ckandra Dey :
'There is no definition of appeal in the Code of Civil Procedure, but their Lordships have no doubt that any application by a party to an Appellate Court, is an appeal within the ordinary acceptation of the term".
In paragraph 6. their Lordships further observed.-
"Now when the aid of the High Court is invoked on the revisional side it is done because it is a superior Court and it can interfere for the purpose of rectifying the error of the Court below. Section 115 of the Code of Civil Procedure circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior Court. It is only one of the modes of exercising power conferred by the Statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense".
This decision per se reveals that when a person approaches the High Court, he approaches High Courts for exercise of its appellate jurisdiction over the order passed by the Court subordinate to High Court. It is general appellate jurisdiction. No doubt, its exercise is circumscribed by the conditions and manner provided as to when it shall be exercised. But as their Lordships laid down, basically and fundamentally it is the appellate jurisdiction of the High Court. Appellate Jurisdiction in respect of cases where the amount in dispute in the claim or at the stage of appeal is less than Rs. 10,000/- the appeal has been completely barred. To allow a person to approach the High Court under Section 115 of the Code of Civil Procedure assuming that a Tribunal is a Court subordinate to High Court when appeal is barred under Section 110-D(2) of the Motor Vehicles Act, 1939 or Section 173(2) of the Motor Vehicles Act, 1988 will only result in permitting the appeal against the intention of the Legislature. Had the intention of the Legislature been that Motor Vehicles Accident Claims Tribunal is to be deemed to be as Civil Court, it would have clearly provided expressly that "Motor Vehicles Accident Claims Tribunal shall be deemed to be Civil Court for the purpose of the CPC" as we can find use of such expressions, or expressions exhibiting such an intention in very many cases such as 'Family Courts Act'. In Family Courts Act, Legislature has clearly indicated and expressed that intention. Under Section 10 of the Family Courts Act, it has clearly been provided.
"For the purpose of the provisions of the Code, a Family Court shall be deemed to be a Civil Court and shall have all the power of such Court".
It is very clear that Legislature in Family Courts Act intended and declared 'the Family Court to be Civil Court'. If we look to Section 8 of the Family Courts Act, which excluded the jurisdiction of other Courts, it does not use the word "No Civil Court". In Section 8 it has been provided, "Where Family Courts have been established for any area -
(a)No District Court or any subordinate Civil Court referred to in sub-section (1) of Section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the explanation to that sub-section".
In this case, if we read there will be no conflict between Section 8 or Section 10 of the Act. Family Courts may be Civil Courts and even if revision under Section 115 is filed, it may be deemed to be Civil Court subordinate to High Court and not subordinate to District Court and revision to High Court may lie. No such expression of intention is or has been found in any provision of Motor Vehicles Act. Permitting filing of revision against the intention of the Legislature will be nothing but interfering in the field of Legislation. When the Act itself does not so provide that Motor Vehicles Tribunal shall be deemed to be Civil Court and it has barred the appeal in the matter any claim less than Rs. 10,000/- under the present Motor Vehicles Act of 1988 and no appeal is maintainable in such matter where value of the claim is less than Rs. 2,000/- as per Section 110-D(2) of the Act 1939, or if it is permissible or allowed in such cases the circumventing of bar created expressly. What cannot be directly done, cannot be permitted to be indirectly done, particularly against the express legislative intent. Learned Counsel contended that it is not a Civil Court, but it has got to be attributed as Civil Court, therefore revision will lie. I am unable to accept that contention. The Code of Civil Procedure may be made applicable for other purpose. But that may not confer on Motor Vehicles Accident Claims Tribunal the status of Civil Court. In Connection with the matters arising from the order passed by the Educational Appellate Tribunal, this Court has discussed this matter also and held that the Educational Appellate Tribunal cannot be deemed to be Civil Court. Same principle may apply here and in particular in view of Sections 110-D(2) and 110-F of the Motor Vehicles Act, 1939 or say Sections 173(2) and 175 of the Motor Vehicles Act, 1988.
6. Thus considered in my opinion, the Motor Accident Claims Tribunal cannot be held to be a Civil Court for the purpose of Section 115. The Division Bench decision referred to by the learned Counsel reported in the case of Mrs. Noreen R. Srikantaiah's case, supra, is only per incu-riam decision and it may be ignored as observed by their Lordships of the Supreme Court, in A.R. Antulay's case, supra, that a decision which is per incuriam loses its binding force as a precedent. The revision application, as such, under Section 115 of the CPC is misconceived and has to be rejected. It is observed that it is open to the applicant to avail any other remedy which may be available to him under law, whether under Constitution or otherwise as advised by his Counsel and it will be open to the parties to raise objection as well to the maintainability of those revisions. Subject to these observations, the above three revisions are dismissed.