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2005 DIGILAW 66 (JK)

State Of J. &K. v. Mohd. Rafi Paswal

2005-03-22

MANSOOR AHMAD MIR

body2005
1. Aggrieved by the order dated 1st June 2004 passed by Motor Accident Claims Tribunal, Srinagar in the application for setting aside the exparte proceedings presented by the petitioners in the claims Tribunal titled Haji Abdul Aziz Sheikh & Ors. v. Chief Secretary Govt. of J&K and others, the petitioner has presented this revision petition. It is profitable to give the backdrops of the case herein;- 2. It appears that respondents 3 to 6 have filed a claim petition in Motor Accident Claims Tribunal, Srinagar on 1st September 2003. Along side the main petition, the petitioners have also filed application for grant of interim award in terms of Section 140 of Motor Vehicles Act. The exparte proceedings were drawn against the respondents 1, 2, 3 and 5 vide order dated 15th October 2003. However, respondent No. 4, namely, Mohammad Rafiq Paswal has caused appearance. Accordingly, the interim award stands passed. 3. Mr. Reshi has filed an application on behalf of respondents 1 to 3 with the prayer that the exparte proceedings drawn against the said respondents and the interim award passed in exparte be set aside. 4. After hearing the claimants i.e., respondents 3 to 6 and learned counsel for the appellant i.e., respondents 1 to 3, the learned Presiding Officer partly allowed the application and partly dismissed the application. The exparte proceedings drawn in the main petition have been set aside but the exparte interim award dated 17th March, 2003 has been kept intact. 5. Feeling aggrieved by the said order, the petitioner ahs preferred the revision petition in hand, assailing the said order and the exparte interim award which shall be, hereinafter, referred to as Impugned order and impugned award. 6. It has been averred in this petition that impugned, award and, order are illegal, erroneous and perverse. 7. Mr. Reshi argued that the order of rejection of the application in terms of Order 9 Rule 13 CPC is revisable, thus revision is competent. The Tribunal is amenable to revisional jurisdiction and High Court is competent to hear revision petitions. 6. It has been averred in this petition that impugned, award and, order are illegal, erroneous and perverse. 7. Mr. Reshi argued that the order of rejection of the application in terms of Order 9 Rule 13 CPC is revisable, thus revision is competent. The Tribunal is amenable to revisional jurisdiction and High Court is competent to hear revision petitions. He further argued that there is no prima facie proof on the file suggesting the fact that the vehicle of the State was involved in the accident; case stands closed as untraced and the finding of Investigating Officer stands upheld by the learned Magistrate and prayed that impugned order as also the impugned award dated 17th March, 2004 be set aside. 8. Mr. Dar while rebutting the arguments argued that the Tribunal is not amenable to the revisional jurisdiction, thus revision is incompetent. The rejection of application under Order 19 Rule 13 CPC is neither appealable nor revisable in terms of provisions of Motor vehicles Act read with Motor Vehicle Rules. All the provisions of Civil Procedure Code have not been made applicable. 9. Considered. The following questions are to be answered;- 1. Whether an order passed by the Tribunal, granting or refusing, an application moved in terms of Civil Procedure Code for setting aside exparte award/order, review or, any other miscellaneous application, is appealable or revisable? 2. Whether Motor Accident Claims Tribunal is amenable to civil jurisdiction? 3. Whether an appeal lies against the order of granting or refusing interim award in terms of Section 140 of the Act. 10. Dwelling on question No. 1. Section 169 of the Motor Vehicles, referred hereinafter as Act, reads as under; "169. Procedure and powers of Claims Tribunals. -- (1) In holding any inquiry under Section 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 Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973. (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 an matter relevant to the inquiry to assist it in holding the inquiry." Sub-clause 2 of Section 169 of the Act mandates that claims Tribunal have all powers of a civil court. It is profitable to reproduce Rule 324 and 325 of Motor Vehicle Rules, referred hereinafter as Rules; - "324. Power vested in civil court which may be exercised by Claims Tribunal: -- (1) Without prejudice to the provisions of section 169:- (a) every Claims Tribunal may exercise all or any of the powers vested in a civil court under the following provisions of the J&K Code of Civil Procedure, Svt.1977 (Act of 1977) in so far as they may be applicable, namely: - Section 30, 32, 34, 35, 35(a) and (c), 76, 77, 94, 95, 132, 133, 144, 145, 148, 149, 151, 152, and 153. (b) subject to the provisions of section 174:- (i) if any Claims Tribunal constituted for any Division where the amount of compensation awarded by it does not exceed twenty-five thousand rupees shall have all the powers of Civil Court, and where such amount exceeds the said sum shall have all the powers of the High Court, for the purpose of execution of the award if the award is a decree for the payment of money made in suit by City Civil Court or the High Court, as the case may be; (ii) for the purpose, other than those specified in sub-rule (1), the Claims Tribunal may exercise all 9 or any of the powers of a Civil Court as may be, necessary in any case for discharging its functions under the Act and the rules made thereunder. 325. Procedure to be followed by Claims Tribunal in holding enquiries: -- (1) The following provisions of the Code of Civil Procedure, Svt. 325. Procedure to be followed by Claims Tribunal in holding enquiries: -- (1) The following provisions of the Code of Civil Procedure, Svt. 1977 shall so far as may be, applied to the proceeding before every Claims Tribunal, namely:- (a) Sections 28, 79 and 82: (b) in the Fist Schedule Order V, rules 9 to 13 (both inclusive) and 15 to 30 (both inclusive), Order VI, Rules 4, 5, 7, 10, 11, 16, 17, and 18 and Order VII, rule 10, Order VII, rules 2 to 5 (both inclusive), 9 and 10, Order IX, Order VII, rules 10 to 15 (both inclusive), 17 to 21 (both inclusive), and 23 Order XII, rules 1, 2, 3, 4, 7 and 5, Order XVI, Order XVII, Order XVIII, rules 1 to 35 (both inclusive), 10 to 12 (both inclusive) and 15 to 18 (both inclusive), Order XXVII, Order XXVIII, Order XXIX, Order XXX, Rules 1, 3 to 8 (both inclusive), and Rule 10, Order XXXII, rules 1 to 15 (both inclusive), Order XXVII, rules 1 to 10 (both inclusive), and Order XXXIX, rules 1 and 3 to 5 (both inclusive). In so far as the Act and these rules make no provision or makes insufficient provision, the relevant provisions of the Code of Civil Procedure, Svt.1977, shall so far as may be, apply to the proceedings before the Claims Tribunal." 11. In terms of aforesaid rules, some specified provisions of Civil Procedure Code have been made applicable. In terms of sub-clause 2 to Rule 324, the Claims Tribunal can exercise all or any of the powers of civil court as may be necessary other than those provisions specified in sub-rule 1 of Rule 324. 12. Now meat of the matter is, that whether an order granting or refusing an application in terms of Order 9 Rule 13 CPC or in terms of any other provision of Civil Procedure Code specified in the Rules referred to hereinabove, is appealable or revisable? 13. While going through the provision of Civil Procedure Code, Order 43 CPC prescribes which of the orders are appealable. But while going through the provisions of the Act and Rules referred hereinabove, Order 43 CPC has not been made applicable. 14. Thus an appeal will not lie against those orders which are appealable in terms of Order 43 of CPC. While going through the provision of Civil Procedure Code, Order 43 CPC prescribes which of the orders are appealable. But while going through the provisions of the Act and Rules referred hereinabove, Order 43 CPC has not been made applicable. 14. Thus an appeal will not lie against those orders which are appealable in terms of Order 43 of CPC. An appeal can be preferred against an award in terms of Section 173 of the Act. The word `award has been used in this provision of law. The word `order has not been used. Thus, in terms of said provisions of law, an appeal will not lie against the order. 15. Viewed thus no appeal will lie against the order, which is appealable in terms of provision of Order 43 CPC. Now, the question is whether a revision will lie? I deem it proper to refrain from offering comments at this stage, because it is to be decided while answering questions 2 and 3. 16. Question No. 2. It is a moot question, whether revision is competent against an order passed by Motor Accident Claims Tribunal which is not appealable in terms of the Act and Rules? In terms of Section 173 of the Act, an appeal lies against an award to the High Court, thus the Motor Accident Claims Tribunal is amenable to the revisional jurisdiction. Keeping this fact in view, it can be held that the Tribunal is amenable to the powers of superintendence and control of High Court. It is profitable to reproduce para-2 of the Apex Court judgment reported in AIR 1979 SC 855 herein;- "2. The poor shall not be prised out of the justice market by insistence on court-fee and refusal to apply the exemptive provisions of order XXXIII, C.P.C. So we are distressed that the State of Haryana, mindless of the mandate of equal justice to the indigent under the Magna Carta of our Republic, expressed in Article 14 and stressed in Art.39A of the Constitution, has sought leave to appeal against the order of the High Court which has rightly extended the `pauper provisions to auto-accident claims. The reasoning of the High Court in holding that Order XXXIII will apply to tribunals which have the trappings of the civil court finds our approval. We affirm the decision." 17. The reasoning of the High Court in holding that Order XXXIII will apply to tribunals which have the trappings of the civil court finds our approval. We affirm the decision." 17. In the aforesaid judgment it has been held that Motor Accident Claims Tribunal is a Civil Court. In terms of Section 169(2) of the Act, the Claims Tribunal has to exercise powers as a civil court. In terms of Rules 324 and 325 of the Rules, the specific provisions mentioned in the said Rules can be invoked and even Motor Accident Claims Tribunal can apply all those provisions of Civil Procedure Code, which the Claims Tribunal deem necessary in terms of Rules referred hereinabove. 18. The learned Single Judge of Madya Pradesh High Court has held that Claims Tribunal is a civil court subordinate to the High Court. The said judgment is reported in 1994 Accident Claims Journal 987, New India Assurance Company Ltd., v. Ajay and others. 19. In the given circumstances, it is hereby held that claims Tribunal constituted under the Act is a court subordinate to the High Court for the purposes of Section 104 of the Constitution of Jammu and Kashmir and subject to its superintendence and control. 20. There are divergent opinions and conflict judgments passed by this court. This court has held in judgment reported 1999 SLJ Vol. II page 568 that Motor Accident Claims Tribunal is amenable to the revisional jurisdiction. But in the judgments reported in 1999 SLJ page 154 and 1999 SLJ Vol-II page 451 contrary view has been taken. 21. Thus in this background, the matter requires to be determined by a larger bench and the matter needs to be referred to Lord Chief Justice, for appropriate orders. 22. Now dwelling upon the question 1 once again. The question that whether the order reference of which is made in question 1 is revisable? 23. Keeping in view the above discussion and finding that Motor Accident Claims Tribunal is amenable to the revisional jurisdiction and is under the control of High Court being court subordinate to the High Court, the orders mentioned in question 1 are revisable. 24. Viewed thus impugned order refusing to set aside the exparte order or proceedings or any other order of that kind are revisable. 25. Now, question is whether interim award, granting or refusing is appealable or not? 24. Viewed thus impugned order refusing to set aside the exparte order or proceedings or any other order of that kind are revisable. 25. Now, question is whether interim award, granting or refusing is appealable or not? In order to appreciate this point of law and to return finding, it is necessary to examine the scheme and relevant provisions of the Act. Chapter 10 deals with `no fault liability. Chapter 12 deals with Claims Tribunal. It is profitable to reproduce Section 165(1) of the Act including explanation, herein;- "165. Claims Tribunals. -- (1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereinafter in this Chapter referred to as Claims Tribunal) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising or both. Explanation. -- For the removal of doubts, it is hereby declared that the expression "claims for compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles" includes claims for compensation under section 140 [and section 163A]. 26. It is crystal clear while going through explanation, referred hereinabove, that a claim for compensation would include claims for compensation under section 140 of the Act. Proviso to Section 166(2) reads as under:- "Provided that where no claim for compensation under section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant" 27. Thus this provision mandates that claim for grant of interim award can be made in the application in terms of Section 166 of the Act. Proviso to Section 168(1) of the Act reads as under;- "Provided that where such application makes a claim for compensation under section 140 in respect of the death or permanent disablement of any person, such claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter X." 28. It mandates that claim for compensation in terms of Section 140 of the Act can be made and disposed of in terms of provisions of chapter X of the Act. Section 168(3) of the Act reads as under:- "168(3) when an award is made under this section, the person who is required to pay any amount in terms of such award shall, within thirty days of the date of announcing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as the Claims Tribunal may direct." 29. It mandates that when an award is made, the person who has to satisfy the award has to deposit the same within 30 days. Section 173(1) of the Act reads as under; - "173. Appeals. -- (1) Subject to the provisions of sub-section (2), any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court: Provided that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court unless he has deposited with it twenty-five thousand rupees or fifty percent, of the amount so awarded, whichever is less, in the manner directed by the High Court: Provided further that the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time." 30. It mandates that an aggrieved person can file appeal against an award. The word `award has been used. The words "final award" have not been used. Thus it includes interim, as well as final award. 31. The word `award has been defined in Websters dictionary as "judgment; decision; the decision of arbitrators on point submitted to them. 32. In Blacks Law Dictionary the meaning of word `award has been given as "A final judgment or decision, esp. one by an arbitrator or by a jury assessing damages". 33. Keeping in view the definitions given hereinabove, an award is a document whereby the adjudication or determination of any dispute or matter is adjudicated or determined. While going through Section 173 of the Act, it becomes crystal clear that same meaning is given to the word `award. 34. one by an arbitrator or by a jury assessing damages". 33. Keeping in view the definitions given hereinabove, an award is a document whereby the adjudication or determination of any dispute or matter is adjudicated or determined. While going through Section 173 of the Act, it becomes crystal clear that same meaning is given to the word `award. 34. An award under Section 140 of the Act is a decision on the claim for compensation there-under as an interim compensation. In order to grant interim award in terms of Section 140 of the Act, certain points are to be discussed and prima facie finding is to be returned and after returning prima facie finding, the interim award is to be passed, which means that there is a determination and adjudication which culminates into an award, though an interim one. Thus it squarely falls within the ambit and scope of Section 173 of the Act. 35. Thus I am of the considered view that an award passed under Section 140 of the Act granting interim award is also an award and is appealable. 36. There are divergent opinions, that whether the interim awards are appealable or not. In a judgment reported in 1995 ACJ page 467 it has been held that interim award is appealable. And in the judgments reported in 1995 ACJ 942, 1999 SLJ 472, AIR 1993 J&K 22, 1989 JKLR 141, it has been held that the same is not appealable; - 37. In the given circumstances, the matter needs to be referred to larger bench. Accordingly, the Registry is directed to place the file before Lord Chief Justice for orders.