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2006 DIGILAW 207 (GAU)

New India Assurance Co. Ltd. v. Member, Motor Accident Claims Tribunal

2006-03-03

B.BISWAS, B.SUDERSHAN REDDY

body2006
JUDGMENT B. Sudershan Reddy, C.J. 1. This batch of writ appeals and writ petitions may be disposed of by a common order, since the only question that arises for our consideration is with regard to the maintainability of the writ petitions filed against the awards passed by the Motor Accident Claims Tribunals under the provisions of the Motor Vehicles Act, 1988. 2. The question is - whether a writ petition under Article 226 of the Constitution of India is maintainable against the award passed by the Motor Accident Claims Tribunal even though law provides remedy of filing of an appeal on limited grounds to the High Court and whether the grounds of challenge can be enlarged by filing petition under Article 226 of the Constitution of India as available under the provision of Section 149(2) of the Motor Vehicles Act, 1988? 3. In almost all the writ petitions, the impugned awards are challenged on the ground that the awards passed and amounts awarded are exorbitant or unjust. In some of the cases irregularities alleged to have been committed are also pleaded. In almost all the cases the writ, petitioners did not exercise their rights under Section 149(2) of the Motor Vehicles Act and the Tribunal has not passed any order under Section 170 of the Act. It is necessary to notice in detail the grounds of attack since we are concerned only with the maintainability of the writ petitions. 4. A learned Single Judge of this Court in Writ Petition (C) No. 3614/2005 relying on a decision of the Supreme Court in Sadhana Lodh v. National Insurance Co. [2003] 1 SCR 567 held that the extraordinary jurisdiction of this Court under Article 226. of the Constitution of India cannot be permitted to be invoked by the insurance companies to challenge the award passed by the Tribunal on the ground "which the Legislature has thought it fit not to be made available to the petitioner/insurance company for invoking appellate or revisional jurisdiction of the High Court". The learned Judge held that the insurance company cannot be permitted to use the forum of the High Court under Article 226 of the Constitution of India to challenge the awards on the ground otherwise not available to them in law. The learned Judge held that what is prohibited directly cannot be permitted to be achieved in an indirect manner. The learned Judge held that the insurance company cannot be permitted to use the forum of the High Court under Article 226 of the Constitution of India to challenge the awards on the ground otherwise not available to them in law. The learned Judge held that what is prohibited directly cannot be permitted to be achieved in an indirect manner. The writ jurisdiction cannot be allowed to be used for such purposes. The orders passed by the learned Single Judge are impugned in the writ appeals. 5. However, in Oriental Insurance Co. Ltd. v. Rejina Begum 2005 (1) GLT 1 and National Insurance Co. Ltd. v. Gauri Roy (Deb) and Ors. 2005 (1) GLT 569 another learned Single Judge of this Court had taken a different view and held that the High Court may, notwithstanding the right of appeal provided to the insurer under Section 149(2) of the Act, interfere in certiorari jurisdiction in order to keep the Tribunals within the bounds of law. 6. In Sadhana Lodh v. National Insurance Co., [2003] 1 SCR 567 this very question had directly fallen for consideration. The appellant therein filed a claim petition before the Motor Accident Claims Tribunal seeking compensation. The Tribunal awarded Rs. 3,50,000 (Rupees three lakh fifty thousand only) as compensation. Aggrieved, the insurer filed writ petition under Article226/227 of the Constitution of India before the Gauhati High Court. A learned Single Judge dismissed the writ petition. The insurer preferred Letters Patent Appeal before the Division Bench in which the claimant took an objection as to the maintainability of the writ petition. The Division Bench of the High Court overruled the objection and allowed the appeal preferred by the insurer and reduced the compensation. The matter was carried in appeal to the Supreme Court. 7. It was specifically urged before the Supreme Court that in view of the fact that under Section 173of the Motor Vehicles Act, 1988, a remedy by way of appeal to the High Court is available to the insurer against an award given by the Tribunal, therefore, filing of petition under Article 226/227 of the Constitution is misconceived and deserve dismissal. The insurer argued that "since an insurer has limited grounds available under Section 173 of the Act, it is open to an insurer to file a petition under Article 226/227 of the Constitution". This specific contention urged was repelled in the following manner. 6. The insurer argued that "since an insurer has limited grounds available under Section 173 of the Act, it is open to an insurer to file a petition under Article 226/227 of the Constitution". This specific contention urged was repelled in the following manner. 6. The right to 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 Article 226/227 of the Constitution on the premise 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. Ltd v. Nicolletta Rohtagi). 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 the High Court to entertain a petition under Article 227of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment 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 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 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 CPC, in such a situation a writ 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 lie for the reason that a mere wrong decision without anything more is not enough to attract jurisdiction of the High Court under Article 226 of the Constitution. (emphasis is ours) 8. That, from a plain and simple reading of the judgment it appears to our mind that an insurer is not entitled to file and initiate any proceedings on any ground other than those under Section 149(2) of the Act. The principle laid down by the Apex Court admits no other view. The grounds of challenge cannot be enlarged by filing a writ petition under Article 226 of the Constitution of India. The question is not one of the jurisdiction of this Court under Article 226 of the Constitution, but is of the exercises of the jurisdiction. Sadhana Lodh (supra) does not say that the Court has no jurisdiction, but dismissed the writ petition as misconceived. The jurisdiction conferred upon the High Court under Article 226 of the Constitution cannot be utilised for any or whatsoever purposes. The Court imposed limitations upon itself in the matter of exercise of its power. There are implied limitations based upon the principles of public policy. It is fundamental to state that the writs that may be issued by this Court in exercise of jurisdiction under Article 226 of the Constitution are aimed to provide remedy of enforcing rights. The existence of a right is the very foundation for the exercise of writ jurisdiction. Article 226 of the Constitution by itself does not confer any right in law. The powers of a High Court to issue to any person or other authority, directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari is for the enforcement of any of the rights conferred by Part III of the Constitution and for any other purpose. It is, therefore, clear that the existence of right is the very foundation, which alone enables an aggrieved person to invoke the jurisdiction under Article 226 of the Constitution of India. 9. It is, therefore, clear that the existence of right is the very foundation, which alone enables an aggrieved person to invoke the jurisdiction under Article 226 of the Constitution of India. 9. It is too elementary to state that neither Section 173 of the Motor Vehicles Act, 1988 nor Section149(2) limits or affects jurisdiction of this Court to issue any appropriate writ in appropriate cases. The limitation, if any, are imposed on the insurer's right to question the award passed by the Tribunal. The Parliament structured and limited the grounds on which an insurer is entitled to prefer appeal against the award passed by the Tribunal. This provision, in no manner, restricts the powers of this Court to issue a writ. No such limitation of law can be imposed on the power of this Court to issue a writ. But, it does not mean that this Court in exercise of jurisdiction under Article 226 of the Constitution can confer power upon individual or institution, as the case may be, which it otherwise does not have in law for the time being in force. This is how we understand the ratio of the judgment in Sadhana Lodh (supra). 10. One need not labour to impress the Court that the provisions of the enactment cannot bar and curtail the remedies provided for under Article 226 of the Constitution of India. But at the same time it is well settled that the Court while exercising its jurisdiction shall always take note of the legislative intent manifested in the provisions of the Act and would exercise its jurisdiction consistent with the provisions of the enactment. It is one thing to say that the jurisdiction of this Court under Article 226cannot be circumvented by the provisions of any statute, but it is another thing to contend that the Court would not have any regard whatsoever to the legislative intent evidenced by provisions of the enactment and would exercise its jurisdiction inconsistent with the provisions of the Act. 11. In Union of India and Anr. v. Kirloskar Pneumatic Co. Ltd., 1996 (84) ELT 401 (SC), the Supreme Court observed "The power conferred by Articles 226/227 is designed to effectuate the law, to enforce the rule of law and to ensure that the several authorities and organs of the State act in accordance with law. 11. In Union of India and Anr. v. Kirloskar Pneumatic Co. Ltd., 1996 (84) ELT 401 (SC), the Supreme Court observed "The power conferred by Articles 226/227 is designed to effectuate the law, to enforce the rule of law and to ensure that the several authorities and organs of the State act in accordance with law. It cannot be invoked for directing the authorities to act contrary to law." 12. For the view we have taken, it is unnecessary to burden this judgment of ours with various authoritative pronouncements that are cited at the bar in which the nature and jurisdiction of the High Court under Article 226 of the Constitution has been explained. Every authoritative pronouncement recognizes limitation on the exercise of powers. 13. For the aforesaid reasons, we are unable to persuade ourselves to accept the view taken by the learned Single Judge in Rejina Begum and Ors., (supra) ; and Gauri Roy (Deb) and Ors., (supra) in which this Court held that a writ petition would lie against an award of the Motor Accident Claims Tribunal at the instance of the insurer on the grounds other than those mentioned under Section 149of the Motor Vehicles Act, 1988. The decision rendered by the Full Bench in Milan Rani Saha (Smti) v. New India Assurance Co. Ltd and Ors. 2000 (2) GLT (fb)393 is no more a good law in view of the authoritative pronouncement by the Apex Court in Sadhana Lodh (supra). We are not inclined to agree with the view taken by the Full Bench of the High Court of Himachal Pradesh in National Insurance Co. Ltd v. Soma Devi. 14. It is not necessary for us to express our opinion as to what are the circumstances, if any, under which an insurer may avail remedy under Article 226 of the Constitution. We cannot imagine or invent the grounds and express our opinion since such a course is impermissible in law and this Court would not express its opinion on academic issues, as it is required to adjudicate his if any and decide the matter in controversy. Suffice it to hold that writ petition challenging the award by the insurer on the grounds which are not otherwise available to it in law are not maintainable. It was, however, urged that awards obtained by playing fraud can always be challenged in a proceeding under Article226 of the Constitution. Suffice it to hold that writ petition challenging the award by the insurer on the grounds which are not otherwise available to it in law are not maintainable. It was, however, urged that awards obtained by playing fraud can always be challenged in a proceeding under Article226 of the Constitution. It is true, fraud vitiates every action and in such a situation writ petition would be maintainable. It is unnecessary to go into the question as to what orders passed by the Tribunals could be challenged in a proceeding under Article 226 of the Constitution of India. 15. We are also not inclined to express our opinion as to whether an insurer is entitled to seek permission to contest the claim on other grounds other than provided under Section 149(2) of the Act even at the appellate stage. The question is left open. 16. The writ appeals as well as the writ petitions are accordingly dismissed without any order as to costs.