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2004 DIGILAW 741 (PAT)

Oriental Insurance Company Limited v. Photo Devi

2004-07-23

S.K.KATRIAR

body2004
Judgment S.K.Katriar, J. 1. Heard learned counsel for the parties. 2. By its order dated 13.1.2003 the Lawazima Board gave four weeks time to the appellant to file certified copy of the Award in Claim Case No. 8 of 2001. The order was not complied with and it was, therefore, laid before the Bench on 11.8.2003 on which date learned counsel for the appellant submitted that the learned Claims Tribunal has, by his order dated 24.5.2003, refused to pass the Award (decree) in terms of the impugned judgment dated 22.6.2002 whereby Claim case No. 8 of 2001 was allowed. The said order dated 24.5.2003 of the learned Claims Tribunal is set out hereinbelow for the facility of quick reference; "Sri Jitendra Kumar Singh, Advocate, appeared on behalf of OP. No. 3 Oriental Insurance Company for pressing his application dated 23.1.2003 filed for preparation of Award in proper format. Heard. On perusal of record, it appears that on filing application by Oriental Insurance Company on 23.1.2003, the District Judges Sarishtedar has reported that no format of Award is available in the text book of Motor Vehicles Act, 1988. I also found that in Motor Vehicles Act, 1988 , sec. 168 deals with Award of the claim cases which speaks that a Claim Tribunal may make an Award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom the compensation shall be paid by the insurer or the owner. And corresponding rule made under Bihar Motor Vehicles Rules, 1992 is replica of sec. 168 of the Motor Vehicles Act. In such circumstances, the report of the District Judges Sarishetedar accepted. Accordingly, the application dated 23.1.2003 filed on behalf of O.P. No. 3 Oriental Insurance Company is disposed of." 3. This Court summarised the law on this point on 11.8.2003, observing that under the Motor Vehicles Act, read with the Rules thereunder the claim case has to be disposed of by a judgment (not award) which has to be followed by a decree described as "Award" in the Motor Vehicles Act, 1988 , and the Rules thereunder. It was, therefore, incumbent on the learned Claims Tribunal to prepare the Award in the nature of a decree, A copy of the order was directed to be forwarded to the District Judge, Khagaria, for circulation in the Judgeship. It was, therefore, incumbent on the learned Claims Tribunal to prepare the Award in the nature of a decree, A copy of the order was directed to be forwarded to the District Judge, Khagaria, for circulation in the Judgeship. Thereafter, the appellants filed another application before the learned Claims Tribunal for preparation of the Award which has been rejected by order dated 19.5.2004. The same is set out hereinbelow; "Perused the application of the Oriental Insurance Company along with the annexures. The record of this case has been called for. From perusal of the order dated 24.5.2003 passed by my predecessor, I find that similar petition has been disallowed by him. As such, now I do not find reason to revise or review his order at this stage. The applicant being fully aware of the earlier rejection order does not appear to have moved against it to the higher Court. Hence, being functus officio, I am not inclined to allow his prayer. It is accordingly rejected." 4. I am unable to appreciate the orders dated 24.5.2003, and particularly the order dated 19,5.2004, after this Court had clarified the position in law by the aforesaid order dated 11.8.2003. It is the duty of the Court delivering the judgment to take the follow-up action and prepare the Award/decree. A Court can never become Functus Officio regarding preparation of the Award/decree of its judgment. The confusion, which is fairly widespread with the Claims Tribunals in Bihar, seems to have arisen because of misappreciation of the expression Award occurring in the Act, and the Rules thereunder. Here the main pronouncement is described as the judgment, and decree has been named as Award, In view of the provisions of Rule 244 of the Bihar Motor Vehicles Rules, 1992 , the Code of Civil Procedure is applicable to the proceedings of the Tribunal. Therefore, in case the format for preparation of the Award (decree) is not prescribed in the Bihar Motor Vehicles Accidents Claims Tribunal Rules, 1961, or The Bihar Motor Vehicles Rules, 1992, then it was incumbent upon the learned Tribunal to prepare the Award in accordance with the format prescribed in the Code of Civil Procedure. 5. Following are some of the relevant provisions in the present context; Sec. 169 of the Motor Vehicles Act, 1988 lays down as follows; "1. 5. Following are some of the relevant provisions in the present context; Sec. 169 of the Motor Vehicles Act, 1988 lays down as follows; "1. In holding any inquiry u/s. 168, 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 such 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. 3. Subject to any rules that may be made in this behalf, the Claims Tribunal may, for the purpose of adjudicating upon any claim for compensation, choose one or more persons possessing special knowledge of and matter relevant to the inquiry to assist it in holding the inquiry." Rule 19 of Bihar Motor Vehicles Accident Claims Tribunal Rules, 1961, provides as follows ; 1. "Judgment and Award of Compensation-(1) The Claims Tribunal in passing orders shall record concisely in a judgment the findings on each of the issues framed the reasons for such findings and make an award specifying the amount of compensation to be paid by the insurer and also the person or the persons to whom compensation shall be paid." 2. Where compensation is awarded to two or more persons the Claims Tribunal shall also specify the amount payable to each of them." Rules 243, 244 and 248 of Bihar Motor Vehicles Rules, 1992 provide as follows : Rule 243. Judgment--The Claim Tribunal, in passing orders, shall record concisely in a judgment the finding on each of the issue framed and its reasons for such finding. Rule 244. Application of Code of Civil Procedure--In so far as these rules make no provision or make insufficient provision, the Claims Tribunal shall follow the procedure laid down in the Code of Civil Procedure 1908 (V of 1908) for the trial of the suits. Rule 248. Enforcement of an award of Claims Tribunal--Subject to the provisions of sec. Rule 244. Application of Code of Civil Procedure--In so far as these rules make no provision or make insufficient provision, the Claims Tribunal shall follow the procedure laid down in the Code of Civil Procedure 1908 (V of 1908) for the trial of the suits. Rule 248. Enforcement of an award of Claims Tribunal--Subject to the provisions of sec. 174, the Claim Tribunal shall, for the purpose of enforcement of its award, have ail the powers of a Civil Court in the execution of a decree under the Code of Civil Procedure 1908, as if the award were a decree for the payment of money passed by such Court in a civil suit. 5. A full Bench judgment of this Court reported in 1990 (10 PLJR 1 (Anirudh Prasad Ambastha V/s. State of Bihar and Ors.) has held that Claims Tribunal is not only within the administrative control of the High Court but also subordinate under sec. 115 of the Code, of Civil Procedure. Paragraphs 53 to 59 of the judgment are relevant in the present context and, inter alia, lay down that Rules 14 and 20 of 1961 Rules provide for pronouncement of judgment and preparation of award, and illumine the position about applicability of the Code, of Civil Procedure to the proceedings of the Tribunal. 6. It has been held by this Court in the following orders that an award in the nature of a decree has to be prepared after the claim case is disposed of by a judgment: (i) Order dated 8.4.1999, passed in MA No. 558 of 1998. (ii) Order 27.6.2000, passed in MA No. 146 of 2000. (iii) Order dated 15.1.2001, passed in M.A. No. 449 of 2000. (iv) Order dated 12.2.2001, passed in M.A. No. 563 of 2000. (v) Order dated 11.8.2003, passed in M.A. No. 451 of 2002. (vi) The order dated dated 16.1.2003 (United India Insurance Company Ltd. V/s. Lalita Devi and Ors.), passed in M.J.C. No. 1385 of 2001. 7. The Supreme Court in its judgment reported in AIR 1961 SC 832 (Jagat Dhish Bhargava V/s. Jawahar Lal Bhargava and Ors.) has laid down that drawing of a decree is essentially the function of the Court and its offices and it is not the duty of the litigant to remind the Court. 7. The Supreme Court in its judgment reported in AIR 1961 SC 832 (Jagat Dhish Bhargava V/s. Jawahar Lal Bhargava and Ors.) has laid down that drawing of a decree is essentially the function of the Court and its offices and it is not the duty of the litigant to remind the Court. Relying on the judgment of this Court reported in AIR 1932 Patna 228, the Delhi High Court in its judgment reported in AIR 2001 Delhi 338 (G.C. Kumar and Ors. V/s. Ashok Kumar and Ors.) has laid down to the effect that once a judgment is delivered and signed, preparation of the decree cannot be postponed. 8. The legal position may be summarised as follows : (i) A claim case is disposed of by a judgment and not an Award; (ii) the decree following the judgment is described under the Act, and Rules as Award; (iii) The Award may be prepared as per the provisions and the format prescribed in the Code of Civil Procedure, if such a provision or format is not available in the Act, or the Rules thereunder. 9. I, therefore, set aside the orders dated 24.5.2003 and 19.5.2004, and direct the learned Claims Tribunal to prepare the Award in the nature of a decree forthwith. 9.1. Let copies of this order be forwarded to the learned District Judge, Khagaria, for circulation in his judgeship. 10. Matters of this nature keep on coming up and engage this Court needlessly. (See paragraph 6 above) In the present case itself, the first order was passed on 13.1.2003, and the matter is still going on. I am in no doubt that these are really the result of non-application of the mind on the part of the Tribunal and the decree Section. Let it be placed before the Standing Committee after obtaining orders of Hon ble the Chief justice for a clear and lucid circular to the Claims Tribunals in Bihar and if necessary, for suitable amendment/clarification in the Civil Court Rules and/or the High Court Rules. 11. The learned Registrar General may inform this Court of the steps taken.