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2003 DIGILAW 186 (JK)

Oriental Insurance Co. Ltd. v. Gulla Shah

2003-06-07

SYED BASHIR-UD-DIN

body2003
On 1.4.1996 Ambassador car with registration mark and No. JKP-8264 driven rashly and negligently by respondents No. 4 at Bahu Awantipora, ran over the deceased and fatally injured him, who died as a consequence. The claimants Gulla Shah and others have filed claim petition before Motor Accident Claims Tribunal, (District Judge) Pulwama. The matter is pending before the Tribunal. The Tribunal awarded interim compensation of Rs. 50, 000/- in this death case on no fault liability under section 92 (A) of M. V. Act of 1939. This order of 6th Oct, 2001 of the Tribunal is challenged in this petition. The writ petition is filed under sections 103 and 104 of the Constitution of Jammu and Kashmir corresponding to Articles 226 and 227 of the Indian Constitution. The impugned order is assailed on sole ground that on the material date, the offending vehicle was not insured with the petitioner Company. In fact the policy of insurance of the vehicle was valid from 3.4.1996 to 2.4.97. When the accident took place on 1.4.1996. The petitioner has no remedy as no appeal is provided for compensation awarded in the interim on no fault liability, therefore the petitioner is approaching this Court under section 103 and 104 of constitution of Jammu and Kashmir. Mr. J.A. Kawoosa, appearing for petitioner submits that as the vehicle was not insured on the date of accident, therefore, the awarding of compensation against the Insurance Company, even by way of interim relief is not permissible and the Tribunal has committed error to order payment of the compensation. Insurance Company cannot be fastened with liability to pay compensation for the accident in question when the policy was not in force on that material date. He cites New India Assurance Co. Ltd. v. Smt. Sita Bai and others, AIR 1999 SC. 3577 in support of his submissions. Mr. Z. A. Qureshi, defending the contesting claimant/respondents submit that the question whether the policy subsisted on the material date of accident, namely 1.4.1996 is a disputed question of fact which has to be determined in enquiry on evidence. This is even so observed by the Tribunal. In the insurance cover note, date from which policy is shown valid as indicated on the bottom of the insurance cover note i.e, 3.1.1996. This is even so observed by the Tribunal. In the insurance cover note, date from which policy is shown valid as indicated on the bottom of the insurance cover note i.e, 3.1.1996. This circumstance is even referred to in the petition memo in the words "a copy of insurance policy is annexed herewith and marked as Annexure-A2. It is submitted that due to clerical mistake by the official preparing the policy he has wrongly mentioned date i.e, 3.1.1996 at the bottom of policy otherwise the policy clearly mentions the risk covered from 3.4.1996 to 2.4.1997." Mr. Qureshi, also submits that the insurance claim for policy in question has been paid much earlier to the date of accident. The policy apart from the dates shown here and there shall be deemed to be in operation on the date of accident namely 1.4.1996. Alluding to this circumstance and the nature of dispute raised to be adjudicated in the petition proceedings, the Tribunal even imposed a condition on the claimants of executing and furnishing an indemnity bond, that in case claimants fail to get the final relief in the proceedings, they shall reimburse the amount to the Insurance Company. In such circumstances, as above, supported by record, can the Insurance Company approach this Court in writ jurisdiction under Articles 226 and 227 of Constitution of India (sections 103 and 104 of the Constitution of J&K) to deny the interim compensation awarded to the claimants under `No fault liability under section 147 of the MVA 1989. In Sadhana Lodh v. National Insurance Coy. Ltd., 2003 AIR SC 930, the Apex court in the context of maintainability of the writ and distinction between Article 226 and 227 observed:- "6. The right of appeal is a statutory right and where the law provides remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Articles 226/227 of the Construction on the premises that the insurer has limited grounds available for challenging the award given by the Tribunal. Section 149 (2) of the Act limits the insurer to file an appeal on those enumerated grounds and the appeal being a product of the statute it is not open to an insurer to take any plea other than those provided under section 149 (2) of the Act (See National Insurance Co. Section 149 (2) of the Act limits the insurer to file an appeal on those enumerated grounds and the appeal being a product of the statute it is not open to an insurer to take any plea other than those provided under section 149 (2) of the Act (See National Insurance Co. Ltd. Chandigarh v. Nicolletta Rohtagi and others, 2002 (7) SCC 456). This being the legal position, the petition filed under Article 227 of the Constitution by the insurer was wholly misconceived. Where a statutory right to file an appeal has been provided for. It is not open to high Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgement of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 of the Code of Civil Procedure. Where remedy for filing a revision before the High Court under Section 115 of CPC has been expressly barred by a State enactment only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution. As a matter of an illustration, where a trial court in a civil suit refused to grant temporary injunction and an appeal against refusal to grant injunction has been rejected, and a State enactment has barred the remedy of filing revision under section 115 C.P.C. in such a situation a writ petition under Article 227 would lie and not under Article 226 of the Constitution. Thus where the State legislature has barred a remedy of filing a revision petition before the High Court under Section 115 CPC, no petition under Article 226 of the Constitution would like for the reason that a mere wrong decision without any thing more is not enough to attract jurisdiction of High Court under Article 226 of the Constitution. 7. 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 correct an error apparent on the face of the record, much less of an error of law. 7. 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 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." This should be an order to the scope and maintainability of the writ as in this case. In New India Assurance Co. Case, `supra, the Supreme Court while focusing on the question when an Insurance policy becomes effective, it is observed by their Lordships that as it was established that the accident had taken place at 10 Hrs on 16.4.1987, while as policy was taken at 21 Hrs. on 16.4.87 itself, the policy on the principles that in absence of contract the insurance policy becomes operative from the midnight when policy is bought during the day, otherwise the policy is operative from the time mentioned in the, cover note of the policy itself. The day and time of taking, the policy is not subject to any dispute here and is not questioned before the Tribunal in the context of the law laid down in New India Assurance Co. (Supra). However, in our case the date, time and hour from which the policy has to be deemed to be effective and operative is in dispute and as observed by the Tribunal, is a matter of adjudication and enquiry. Therefore, the authority in the factual matrix and the circumstances of the case is not applicable to the case at hand. In National Insurance Coy. Ltd. v. Jathu Ram and others, 1999 (9) SCC 62, the court while examining the liability to pay compensation on the principles of `no fault basis, held that the liability of the owner can be joint with Insurance Coy. or it can be several. In National Insurance Coy. Ltd. v. Jathu Ram and others, 1999 (9) SCC 62, the court while examining the liability to pay compensation on the principles of `no fault basis, held that the liability of the owner can be joint with Insurance Coy. or it can be several. The claim based on no fault liability cannot be defeated on the premise that the claim to compensation is provided by any other provision of the M.V.Act or any other law for the time in force. If no liability of the insurer is ultimately established, the insurer is entitled to be reimbursed by owner the amount paid by it as compensation under no fault liability. The term of the impugned order requiring the claimants to furnish an indemnity bond of reimbursing the amount to the Insurance Coy, is besides the right which the Insurance Coy may ultimately have against the owner once the Tribunal reaches the conclusion that the offending vehicle was not covered by the Insurance policy or cover, on the material date of accident. This addresses the concern of the Insurance Coy. on the projected grievance. In United Insurance Co. Ltd. v. Presiding Officer MACT, Baramulla and Ors., in the context of interim award 2002 KLJ 349 (Vol. XLI), I had an occasion to deal with award of interim relief under section 140 of M.V.Act and the following observations squarely apply to this case:- ".....The Presiding officer of MACT Baramulla has considered matter minutely. It has come to the conclusion that at the inchoate stage of the claim proceedings before Tribunal the time of accident and time of taking insurance cover cannot be said to be conclusively determined as claimed by the Insurance Company. Admittedly insurance cover was issued on the same date on which date accident took place. The knowledge of time of accident of petitioner is rooted to FIR, copy whereof is not placed as annexure to the writ petition. Besides, this aspect has to be looked into and examined on inquiry when parties lead evidence. It is only then a finding thereto can be recorded. At the stage of award of Interim relief given the context that the provisions is beneficial and has social purpose, the Tribunals conclusion that prima facie the case falls within the ambit of Section 140 M.V. Act is justified and sustainable. It is only then a finding thereto can be recorded. At the stage of award of Interim relief given the context that the provisions is beneficial and has social purpose, the Tribunals conclusion that prima facie the case falls within the ambit of Section 140 M.V. Act is justified and sustainable. The interim award is within parameters of mandatory requirements of law in the given factsituation of this case. This award is within confines of law and passed within jurisdiction. The detailed questions whether the accident in question and the claim put forth thereto is covered by Insurance Policy and the liability of Insurance Co. and in alternative liability of the owner of the vehicle are all matters that will have to await determination on facts and circumstances established on evidence/material before Tribunal." In result for the aforesaid view of the matter, in my opinion, the writ petition is not maintainable. Hence dismissed.