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2005 DIGILAW 811 (GAU)

New India Assurance Co. Ltd. v. Anil Kurmi

2005-12-02

I.A.ANSARI

body2005
JUDGMENT Iqbal Ahmed Ansari, J. 1. I have heard the learned Counsel for the parties. 2. By this common judgment and order, I propose to dispose of the two civil revision and the lone writ petition enlisted above, for, the two civil revision and the writ petition are, concede the learned Counsel for the parties, inextricably linked with each other and the decision in any of them may adversely affect the out-come of the remaining matters. 3. The material facts and various stages, which have led to the two civil revision and the writ petition aforementioned, may, in brief, be set out as follows: The writ Petitioners, Smti Rasiti Das and Sri Anil Kurmi, made two separate applications under Section 166 of the Motor Vehicles Act, 1988 (in short, the MV Act), in the Motor Accidents Claims Tribunal, Kamrup, Guwahati, seeking compensation for the death of Nitin Das and Naresh Kurmi respectively. The claim applications made by these two claimants gave rise to MAC Case Nos. 173 of 2002 and 821 of 2002 respectively. While in MAC Case No. 173 of 2002, Smti Rasiti Das made a claim for compensation for the death of her son, Nitin Das, Sri Anil Kurmi, in MAC Case No. 821 of 2002, claimed compensation for the death of his brother, Naresh Kurmi, both the deaths having caused in an accident, which took place, on 20.05.2001, at Amlapatti, Dibrugarh. In both these claim cases, the claimants' case was that while the said two deceased were traveling in an ambassador car, bearing registration No. UGY 233, from Kathkota to Natungaon, the said car collided against a public bus, bearing registration No. ASZ 6441, resulting into the death of the said two deceased, namely, Nitin Das and Naresh Kurmi, the accident having occurred due to rash and negligent driving by the drivers of both the said vehicles. In both the said claim cases, M/S New India Assurance Company Limited filed, as insurer of the said public bus, their written statements, contending, inter alia, that according to the police report, which was submitting in connection with the said accident, the said two deceased were not the occupants of the said car, rather, the said two deceased were cyclists and they were knocked down by the said car, which were driven by its driver in rash and negligent manner. According to the insurer, since there was no fault on the part of the driver of the said bus, M/s New India Assurance Company Limited, as insurer of the said bus, was not liable to pay any compensation whatsoever. 4. Pending disposal of the claim applications made under Section 166, the claimants also made separate applications, under Section 140 of the MV Act, seeking compensation on the principle of no-fault liability for the death of the said two deceased. 5. Notwithstanding the fact that the insurer of the said public bus disputed its liability to pay any compensation to the claimants, the learned Tribunal passed an order, dated 23.12.2002, holding to the effect that insurers of both the said vehicle were jointly and severally liable to pay Rs. 50,000/- as compensation in favour of the claimants on the principle of no-fault and accordingly directed the insurers to make payment thereof within thirty days in equal proportion and fixed the claim cases for recording of evidence on 27.02.2003. Aggrieved by the order, dated 23.12.2002, aforementioned, the insurer has impugned the same by way of the two civil revisions, the Civil Revision No. 98 of 2003 having been directed against the order, dated 23.12.2002, passed in MAC No. 821 of 2002 and the Civil Revision No. 99 of 2003 having directed against the said order passed in MAC Case No. 173 of 2002. While admitting the two revisions, on 23.12.2002, the Court directed issuance of notices to the parties concerned in order to enable them to have their say against the prayer for stay of the impugned order made by the insurer. 6. As the insurer did not make payment of the no-fault liability amounts in terms of the order, dated 23.12.2002, aforementioned, applicants were made, under Section 174 of the MV Act, in the said two claim cases, seeking recovery of the awarded amounts as arrear of land revenue. Responding to these applications, the learned Tribunal passed an order, dated 24.04.2003, directing issuance of recovery certificate against the Regional Manager, M/s New India Assurance Company Limited. Based on this recovery certificate, Bakijai Case No. 29 of 2002 commenced in the office of the Deputy Commissioner, Kamrup. Responding to these applications, the learned Tribunal passed an order, dated 24.04.2003, directing issuance of recovery certificate against the Regional Manager, M/s New India Assurance Company Limited. Based on this recovery certificate, Bakijai Case No. 29 of 2002 commenced in the office of the Deputy Commissioner, Kamrup. On receiving notice of the Bakijai Case No. 29 of 2002 aforementioned, the insurer aforementioned filed a petition before the Bakijai Officer stating to the effect, inter alia, that aggrieved by the order, dated 23.12.2002, directing the insurer concerned to make payment of the awarded amount to the extent of 50%, the insurer had already filed civil revision and the same were pending and, hence, the Bakijai proceeding be stayed. On the petition, so made, the Bakijai Officer passed an order, on 18.06.2003, stating to the effect that as per the directions of the High Court, the proceeding of the Bakijai case is suspended. Though the two claimants aforementioned made applications, in Bakijai Case No. 29 of 2002 aforementioned, seeking to get the order, dated 18.06.2003, aforementioned vacated, no order was passed on the said application by the Bakijai Officer. Similar applications were made, once again, by the claimants on 17.02.2004; but as the same did not yield any result, the two claimants impugned the order, dated 18.06.2003, aforementioned (whereby the Bakijai Proceedings were stayed) in a writ petition, which has given rise to WP (C) No. 2182 of 2004 aforementioned. 7. The impugned order, dated 18.06.2003, aforementioned, whereby the Bakijai proceeding has been suspended by the Bakijai Officer is, principally, challenged on the ground that the High Court, while admitting the Civil revisions, had not stayed the Bakijai proceeding and, hence, the Bakajai Officer ought not to have suspend the proceeding by observing to the effect that the Bakijai proceeding was being suspended as per direction of the High Court. 8. Without entering into the question as to whether the Bakijai Officer could have stayed the Bakijai proceeding or not, what is imperative to note is that the order, dated 23.12.2002, which stands impugned in the two Civil Revisions, is an order, which is interim in nature, for, the order has been passed under Section 140 of the MV Act and the direction given by such an order is subject to and would be governed by, the award, which would be finally passed in the claim proceeding. Even if the order, dated 23.12.2002 is interfered with, it would not end the claim proceeding against the insurer concerned. Can such an order, in the face of the amended provisions of Section 115 of the Code of Civil Procedure (in short, the Code) be interfered with in revision? My quest for an answer to this question brings me to Shiv Shakti Coop. Housing v. Swaraj Developers reported in (2003) 6 SCC 659 , wherein the effect of the recent amendments to the Code has been summarized by the Apex Court thus: 32. A plain reading of Section 115 as it stands makes it clear that the stress in on the question whether the order in favour of the party applying for revision would have given finality to suit or other proceeding. If the answer is "Yes" then the revision is maintainable. But on the contrary, if the answer is "No" then the revision is not maintainable. Therefore, if the impugned order is interim in nature or does not finally decide the lis, the revision will not be maintainable. The legislative intent is crystal clear. Those orders, which are interim in nature, cannot be the subject-matter of revision under Section 115. 9. The fall-out of what has been laid down in Shiv Shakti Coop. Housing (supra) is that in the past, i.e., before the Code of Civil Procedure (Amendment) Act, 2002, came into force, an order, which suffered from jurisdictional error, could have been interfered with by the High Court in exercise of its revisional jurisdiction under Section 115 if the order under challenge was likely to cause failure of justice or irreparable loss or injury to the party approaching the revisional Court; but with Clause (b) of the proviso to Section 115(1) having been deleted under the new Act, the implication is that even if an order suffers from jurisdictional error or causes failure of justice or irreparable injury to the party approaching the Court, the order will not be interfered with in revision unless the order, which is sought to get revised, is such that had the order been made in favour of the party applying for revision, it would have terminated the suit or the proceeding. 10. 10. In short, thus, since an order directing payment of no-fault liability amount, if passed, under Section 140 of the MV Act, during the pendency of the claim application under Section 166 or Section163 of the MV Act, does not terminate or end the claim proceeding, such an order would not be a revisable order under Section 115 of the Code. 11. Because of what have been discussed and pointed out above, the two civil revisions fail and the same shall accordingly stand dismissed. The impugned order, dated 18.06.2003, passed by the Bakijai Officer, which stands impugned in WP (C) No. 2182 of 2004, is, therefore, set aside and it is hereby directed that the Bakijai proceedings shall continue in accordance with law. The insurer-Petitioner is hereby directed to satisfy the recovery certificate issued by the learned Tribunal. It is, however, made clear that the payment made by the revision Petitioner, namely, New India Assurance Company Limited, in terms of the order, dated 23.12.2002 and/or 24.04,2003, aforementioned, shall be subject to the out-come of the claim proceedings, in question. 12. With the above observations and directions, the writ petition and the civil revisions shall stand disposed of. 13. No order as to costs.