Nesamony Transport Corporation Ltd. , Nagercoil v. John Bright (Minor), represented by Guardian and Father A. Ramasamy and another
1992-10-30
VENKATASWAMI
body1992
DigiLaw.ai
Judgment : This revision petition is filed under Art.227 of the Constitution of India challenging an order of the tribunal below allowing LA.127 of 1990 a petition for reviewing an order already passed on 31. 1990 in I.A.No.435 of 1989 in S.R.No.1899 of 1989. 2. Brief facts are the following: In a motor accident that took place on 212. 1986 minor John Bright, the first respondent herein was permanently disabled. Unfortunately the father and guardian of the minor did not take timely steps to file a petition for compensation under Sec.110-A of the Motor Vehicles Act, 1939, but filed the same after a delay of 737 days with a petition to condone that delay. That petition namely I.A.No.435 of 1989 was dismissed. Aggrieved by that the minor represented by the father and guardian has filed I.A.No.127 of 1990 purporting to invoke the provisions of 0.47, Rule 1 of the Code of Civil Procedure. 3. The court below overruling the objections of the petitioner herein entertained the review application and allowed the same. Hence the present revision petition. 4. At the outset it is to be pointed out that there is nothing to suggest from the original application or from the original records that I.A.No.127 of 1990 was filed before the Motor Accidents Claims Tribunal and dealt with as such. However, the counter filed by the petitioner herein as second respondent in the said I.A. proceeds as if the application was filed before the Motor Accidents Claims Tribunal (District Court Kanyakumari at Nagercoil). It proceed on the basis that the application was disposed of by the claims tribunal though the cause title shows as if it was disposed of by the District Court. 5. Mrs.Bhagirathi Narayanan, learned counsel appearing for the petitioner raised two important contentions before me. The first contention was that the tribunal has no inherent power to review an earlier order passed by it. The second contention was even assuming that the tribunal has power to review its order the order under revision cannot be sustained as no reason is given in the order. Learned counsel placed reliance on two judgments of the Supreme Court one judgment of this court and another judgment of Bombay High Court. They are P.N. Thakershi v. Pradyumen Singhiji A.I.R 1970 S.C. 1273, Col. Avtar Singh v. Union of India, A.I.R 1980 S.C. 2041: (1981)1 S.C.R. 162. V.Dhandayuthapani v. S.P.Krishnamurthi, A.l.R. 1988 Mad.
Learned counsel placed reliance on two judgments of the Supreme Court one judgment of this court and another judgment of Bombay High Court. They are P.N. Thakershi v. Pradyumen Singhiji A.I.R 1970 S.C. 1273, Col. Avtar Singh v. Union of India, A.I.R 1980 S.C. 2041: (1981)1 S.C.R. 162. V.Dhandayuthapani v. S.P.Krishnamurthi, A.l.R. 1988 Mad. 78 and M/s.National Hotel v. Rukaiyabai, A.l.R. 1985 Bom. 403. 6. Mr.V.K.Rajagopal learned counsel appearing for the first respondent submitted that the tribunal has power to review its order and though the review order does not contain any reason having regard to the fact that the minors career has been seriously affected and that the minor is not in a position to look after himself as a result of the accident this Court may not be pleased to interfere with the order under revision. In support of his contention that the tribunal has power to review its earlier order he cited the decision in State of Haryana v. Smt.Darshana Devi, A.l.R 1979 S.C. 855: 1979 A.C.J. 205 and also the decision in Bhagwthi Devi and others v. M/s.l.S.Goel and others, 1983 A.C.J. 123. 7. I have considered the rival submissions. 8. Before going into the actual question namely whether the tribunal has power to review it is relevant to note down the provisions relating to ‘procedure and powers of claims tribunals’ Sec.110-Cof the Motor Vehicles Act 1939 reads as follows: "110-C: Procedure and powers of claims tribunals:(1) In holding any inquiry under Sec.110-B the claims tribunal may subject to any rules that may be made in this behalf follow such summary procedure as it thinks fit. .(2) The claims tribunal shall have all the powers of a Civil -Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for other purposes as may be prescribed; and the claims tribunal shall be deemed to be a civil court for all the purposes of Sec.195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).
.(i) there is collusion between the person making the claim and the person against whom the claim is made, or .(ii) the person against whom the claim is made has failed to contest the claim, it may for reasons to be recorded by it in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made. .(3) Subject to any rules that may be made in this behalf, the claims tribunal may, for the purpose of adjudicating upon may claim for compensation choose one or more persons possessing special knowledge of any matter relevant to the inquiry to assist it in holding the inquiry.“ (2-A) Where in the course of any inquiry the claims tribunal is satisfied that--The relevant rule framed in this regard by the Tamil Nadu Government is rule No.18 which reads as follows: ”18. Code of Civil Procedure to apply in certain cases... The following provisions of the First Schedule to the Code of Civil Procedure, 1908, shall so far as may be apply to proceedings before the claims tribunal namely O.5. Rules 9 to 13 and 15 to 30 O.9, 0.13,Rules 3 to 10; 0.16, Rules 1 to 21; 0.17 and 0.23, Rules 1 to 3.“ 9. The contention of Mrs.Bhagirathi Narayanan was that neither Sec.110-C (2) nor Rule 18 refers to 0.47, C.P.C. to enable the tribunal to invoke the power of review. Therefore according to the learned counsel the tribunal has no jurisdiction to review its earlier order as it has otherwise no inherent jurisdiction. 10. On the first blush the above argument is not only attractive but appeals for acceptance. However, it requires a detailed discussion. 11. In P.N. Thakershi v. Pradyumen Singhji, A.I.R. 1970 S.C. 1273, the Supreme Court has held as follows: ”The first question that we have to consider is whether Mr.Mankodi had competence to quash the order made by the Saurashtra Government’ on October 22,1956. It must be remembered that Mr.Mankodi was functioning as the delegate of the State Government. The order passed by Mr.Mankodi in law amounted to a review of the order made by Saurashtra Government.
It must be remembered that Mr.Mankodi was functioning as the delegate of the State Government. The order passed by Mr.Mankodi in law amounted to a review of the order made by Saurashtra Government. It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. No provisions in the act was brought to our notice from which it could be gathered that the Government had power to review its own order. If the Government had no power to review its own order it is obvious that its delegate could not have reviewed its order......“ The above ruling of the Supreme Court was applied by a Division Bench of this court in the case reported in V.Dhandayuthapani v- S.P. Krishnamurthi, A.l.R. 1988 Mad. 78. Again the ruling of the Supreme Court was applied in the case relied on by the learned counsel for the petitioner namely M/s.National Hotel v. Rukaiyabai, A.I.R. 1985 Bom. 403. 12. As against this it has to be found out whether the above ruling of the Supreme Court applied by this Court and the Bombay High Court as noticed above can be applied to the facts of this case. 13. In State of Haryana v. Smt. Darshana Devi, A.I.R. 1979 S.C. 855:1979 A.C.J. 205, the Supreme Court while finding fault with the State of Har-yana forming a Special Leave Petition against the judgment of the Punjab and Haryana High Court granting leave to file a petition for compensation as indigent person under 0.33, C.P.C. observed as follows: ”.....The court must give the benefit of doubt against levy of a price to enter the temple of justice until one day the whole issue of the validity of profit making through sale of civil justice disguised as court-fee is fully reviewed by this Court. Before parting with this point we just express our poignant feeling that no State; it seems, has as yet framed rules to give effect to the benignant provision of legal aid to the power in O.33, Rule 9-A, Civil Procedure Code, although several years have passed since the enactment parliament is stultified and the people are frustrated. Even after a law has been enacted for the benefit of the poor the State docs, nor bring into force by wilful defautl in . fulfilling the condition sine qua nan.
Even after a law has been enacted for the benefit of the poor the State docs, nor bring into force by wilful defautl in . fulfilling the condition sine qua nan. It is a public duty of each great branch of Government to obey the rule of law and uphold the trust with the Constitution by making rules to effectuate legislation meant to help the poor. “ Even though O.33, C.P.C. is not expressly mentioned either in the Motor Vehicles Act or in the rules framed thereunder by the respective states in the aforesaid Supreme Court Judgment the learned judges have upheld the leave granted under 0.33, C.P.C. to file the application as indigent person. 14. Again the Supreme court in Bhagwathi Devi v. MIs.I.S.Goel, 1983 A.C.J. 123, held as follows: ”In view of the observations of this Court in State of Haryana v. Smt.Darshna Devi, 1979 A.C.J. 205: A.I.R 1979 S.C. 855, we are of the view that the Motor Accident Claims Tribunal constituted under the Motor Vehicles Act is a civil court for the purpose of Sec.25 of the Code of the Civil Procedure. We are satisfied that the cases before us are fit cases for being transferred from the file of the Motor Accidents Claims Tribunal, Moradabad to the file of the Motor Accidents Claims Tribunal, Delhi. The transfer petitions are accordingly allowed and compensation application Nos.3 to 15 of 1982 pending before the Motor Accidents Claims Tribunal, Moradabad are transferred to the file of the Motor Accidents Claims Tribunal, Delhi.“ Here again though Sec.25 of the Code of Civil Procedure was not referred to either in the Motor Vehicles Act of in the Rules framed thereunder the application of that section was justified by the Supreme Court. 15. Applying the principle laid down by the Supreme Court in Bhagwathi Devi v. M/s.I.S.Goel, 1983 A.C.J. 123, Srinivasan, J., in Kanniammal and others v. P.Narayanan and others, 1988 T.L.N.J. 310, has held as follows: ”Thus the Motor Accidents Claims Tribunal having been held to be a civil court for the purpose of Sec.25, Code of Civil Procedure is certainly a court subordinate to the High Court for the purpose of Sec.24, Code of Civil Procedure.
xxx xxx xxx According to learned counsel it is only those course which are specifically referred to in Sec.3 Code of Civil Procedure are subordinate to High Court and not any other statutory tribunal which may be equated to civil court for certain purposes. Sec.110(c)(2) of the Motor Vehicles act is to the effect that the tribunal shall have all the powers which civil courts have for taking evidence for enforcing the attendance of witness for discovery for production of documents and the like. It is also stated that the claim tribunal shall be deemed to be a civil court for the purpose of Sec. 195 and Chapter 35,Crl.P.C, 1898 (Act 5 of 1898). In view of the decision of the Supreme Court and the provisions of Sec.110(c)(2) of the Motor Vehicles Act it is clear that the Motor Accidents Claims Tribunal is a civil court for certain purposes. As it is held to be a civil Court for the purpose of Sec.25, Code of Civil Procedure it is necessarily a court subordinate to the High Court for the purpose of Scc.24, Code of Civil Procedure because it is a court of a grade inferior to that of a District Court.......“ 16. A Division Bench of this Court in S.V.R Natarajan Chettiar v. State of Madras, I. L.R 1960Mad. 449, on the question whether the tribunal constituted under the Madias Estates (Abolition and Conversion into Ryotwari) Act, 1948, has got power to review its judgment held as follows: ”It is argued that this decision of the tribunal was without jurisdiction that the consent of the appellants could not confer jurisdiction upon the tribunal and that we must set aside the subsequent order illegally passed in the present appeal. The argument appears to us to be quite unsustainable upon two broad grounds. Firstly, whatever view we may take of the technical position whether a quasi judicial tribunal would or would not possess rights of review under the Code of Civil Procedure the proposition certainly seems maintainable that in order to render justice all such tribunals so long as they exercise judicial functions should he held to possess inherent powers to review their judgments where due cause is shown.
Our attention has been drawn to a decision briefly reported in Balakrishnayya v. State of Andhra, where Balakrishna Aiyar, J. held under somewhat similar circumstances that the inam Settlement Officer had no jurisdiction to reopen an enquiry made under Sec.9 of Act XXVI of 1948 at the question of the ryots. We do not think that it is necessary to dilate upon this aspect for the learned Judge was dealing with the case of a Settlement Officer making some kind of an administrative enquiry though under the act. In the present case we are concerned with a quasi-judicial tribunal giving a finding in the presence of the parties whether a particular village did or did not fall within the ambit of the relevant provision. As we have already stressed there can be do doubt that an inherent power to review should be presumed in all such cases, as it cannot be just and expedient that such tribunals rendering judicial decisions should be unable to rectify an error apparent on the face of the record or to exercise powers of review for similar adequate causes. “ 17. In New India Assurance Company Ltd. v. Min-que Lourence Cornea, 1986 A.C.J. 646, a learned single Judge of the Bombay High Court on the question of power to review by Motor Accidents Claims Tribunal held as follows: ”On a careful consideration of the above authorities I am of the opinion that the decision of the Supreme Court in Northern India ‘Caterers’ case, A.I.R. 1980 S.C. 674, is not of any help for the purpose of determining as to whether or not the power of review has to be expressly conferred. In fact the said authority deals with the problem as to when powers of review are to be exercised. However, the authority in P.N. Thakershi v. Pradyumen Singhji, A.l.R. 1970 S.C. 1273, is more to the point. Their Lordships had made it clear that the power of review can be said to have been conferred in an authority or court if there is an express provision therefor or such power has to be read by necessary implication. Now applying these observations to the case before me I am bound to hold that powers of review have been vested in the Motor Accidents Claims Tribunal.
Now applying these observations to the case before me I am bound to hold that powers of review have been vested in the Motor Accidents Claims Tribunal. In fact Sec.3-A empowers the State Government to make rules for the purpose of carrying into effect the provisions of Secs.110 to 110-E of the Act and in particular to make rules enabling the claims tribunal to exercise the powers vested in a civil court. In exercise of such powers the Government of Goa, Daman and Diu has enacted the Goa, Daman and Diu Motor Accidents Claims Tribunal Rules 1966. Rule 6 specifically provides that the claims tribunal may exercise all the powers of a civil court save in so far as the same are not inconsistent with the provisions of the Motor Vehicles Act, 1939 and Rules framed thereunder. Rule 6 vests in the claims tribunal all the powers of a civil court which are not inconsistent with the provisions of the Motor Vehicles Act and the rules framed thereunder. The power of review is by no stretch of imagination inconsistent with the provisions of the act and the rules framed thereunder. Thus it has to be held that the act read with the rules by necessary ‘implication vests the power of review in the claims tribunal.“ Though that judgment was in the light of the rules made in that Slate under Sec.111 -A of the Motor Vehicles Act the point to be noticed is that there was no express provision either in the Act or rules framed thereunder. 18. We have now seen that the Supreme Court has categorically held that the Motor Accidents Claims Tribunal is a civil court. Further the Supreme Court as well as this court had applied the provisions of the Civil Procedure could not expressly mentioned either in the Act or made Rules framed thereunder. Following that trend, and as observed by a Division Bench of this Court in the decision reported in Sy.R.Natarajan Chettiar v. State of Madras, I.L.R. 1961) Mad: 449, it should be held that the tribunal so long as it exercises judicial functions should be held to possess power to review its judgment where due cause is shown. In view of the later Supreme Court judgments holding that the tribunal is a civil court.
In view of the later Supreme Court judgments holding that the tribunal is a civil court. 1 do not think that the ratio laid down by the Supreme Court in P.N.Thakershi v. Pradyumen Singhji, A.l.R. 1970 S.C. 1273, can be pressed into service. In the light of the foregoing I am inclined to hold that the Motor Accidents Claims Tribunal has jurisdiction to review its earlier order where due cause is shown. 19. Now coming to the second question whether the order is sustainable in the absence of any reason given therefor, in support of her contention that the order under revision cannot be sustained, the learned counsel for the petitioner cited a judgment of the Supreme Court in Col.Avtar Singh Skkhow v. Union of India. A.I.R. 1980 S.C. 2041: (1981)1 S.C.R. 168 , wherein the Supreme Court has observed as follows: ”A review is not a routine procedure. An earlier order cannot be reviewed unless the court is satisfied that material error manifest on the face of the order undermines its soundness or results in miscarriage of justice. A review of a judgment is a serious step and resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility....." No doubt the above judgment supports the contention of the learned counsel for the petitioner. However in the facts of the present case I find that equity is not in favour of the petitioner. Considering that I expected the petitioner to compromise the matter and for that purpose the matter was adjourned. However the learned counsel for the petitioner expressed her inability to persuade the petitioner to compromise the matter.
However in the facts of the present case I find that equity is not in favour of the petitioner. Considering that I expected the petitioner to compromise the matter and for that purpose the matter was adjourned. However the learned counsel for the petitioner expressed her inability to persuade the petitioner to compromise the matter. In this connection, the exercise of the jurisdiction under Art.227 of the Constitution of India being discretionary I would like to quote and apply an observation of Ismail, J. as he then was while considering the scope of Sec.115 of the Code of Civil Procedure in Chennichi alias Parikkal v. Srini- vasan Chettiar, (1970)1 M.L.J. 234 , which reads as follows: "The revisional jurisdiction of the court is intended to secure and subserve ends of justice and not to deny or defeat it if interference in a particular case will result in hardship or injustice to a party the High Court will be justified in refusing to interfere in the exercise of its revisional jurisdiction, even if the order is found to be one without jurisdiction." The above passage has been approved and applied by a Division Bench of this Court in S.N.Kuba v. P.P.L.Vaithyanathan, 1988 T.L.N.J. 1, I am inclined to apply the above ratio to the facts of this ease and declined to exercise my discretionary jurisdiction in favour of the petitioner. Accordingly the civil revision petition fails and the same is dismissed. No costs.