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2008 DIGILAW 13 (JK)

Ram Ji v. New India Assurance Co. Ltd.

2008-01-30

VIRENDER SINGH

body2008
1. The present three appeals have been filed by claimants impugning the orders dated 26.4.2004 vide which their claim petitions were finally settled by the Lok Adalat directing respondent No. 1 (Insurer of offending vehicle) to deposit a sum of Rs 1,75,000/- in the claim petition filed by Ramji and another, Rs 3 lacs in the claim petition filed by Sham Singh and others and Rs 1,75,000/- in their third petition filed by Sita Ram and others. Since there is delay of 429 days in filing all the three appeals, three different applications bearing No. 178 of 2005, 179 of 2005 and 180 of 2005 have been filed. The appeals have not been numbered till date on account of the aforesaid delay. 2. Pursuant to notice on all the three applications, Mr. R. K. Gupta has put in appearance on behalf of the Insurance Company and Mr. M.L. Sharma appears for the other two respondents (owner and driver of offending vehicle). The respondents have objected to the application for condonation of delay by filing their respective return. 3. Heard learned counsel for both the sides. At the very outset, Mr. Gupta, learned counsel for the Insurance Company, submits that since he has joined issue on the point of maintainability of the present appeals against the decree passed with the consent of the parties, it would be most appropriate if the said aspect is also commented upon while adjudicating the miscellaneous applications for condonation of delay, to which Mr. Bhatia, learned counsel for the claimants/appellants, also agrees. 4. Mr. Bhatia submits that the Lok Adalat has settled the claim petitions of the appellants without their knowledge and consent as the settlement was arrived at by their counsel without informing them. Taking it on hyper technical aspect, he further submits that no compromise in writing or signed by the appellants was furnished before Lok Adalat and before settlement of the case, the Court has also not recorded its satisfaction. Therefore, it is in violation of Order XXIII Rule 3 of the Code of Civil Procedure. According to Mr. Bhatia, even otherwise, the amount settled in all the three claim petitions is on very lower side to which the appellants would have not given their consent. 5. Praying for condoning the delay, Mr. Therefore, it is in violation of Order XXIII Rule 3 of the Code of Civil Procedure. According to Mr. Bhatia, even otherwise, the amount settled in all the three claim petitions is on very lower side to which the appellants would have not given their consent. 5. Praying for condoning the delay, Mr. Bhatia submits that the appellants came to know of the order some wherein second week of September, 2005 when they inquired about the fate of their claim petitions from their counsel and thereafter they applied for the certified copy of the order for impugning the same. He then contends that the fact that the appellants were not aware of the order passed by the Lok Adalat is evident from one admitted position that the amount is still lying with the learned Tribunal at Jammu and the appellants have not withdrawn the same. All the three claim petitions are relating to death and this settlement arrived at by the counsel on his own has caused great loss to the appellants being legal heirs of the deceased. 6. In support of his contentions, Mr. Bhatia has relied upon a judgment of this Court rendered in Kamlesha Devi and others v. Oriental Insurance Company and another, CIMA 3/2002, decided on 04.08.2005, photo-stat copy thereof has been placed on record. 7. On the basis of the aforesaid submissions, Mr. Bhatia submits that although the delay, no doubt, on the face of it appears to be huge one, yet all the three applications, in the interest of justice, deserve to be allowed. In the same stress, he puts forth his view point that even at motion stage itself all the three impugned orders passed by the Lok Adalat deserve to be set aside for remitting the cases to the Tribunal for disposal in accordance with law. 8. Mr. Gupta, learned counsel for Insurance Company besides raising preliminary objection to the maintainability of present appeals because of statutory bar as contained in Section 96 (3) of the Code of Civil Procedure submits that even otherwise there is a huge delay in filing these appeals by the claimants and no ground, much less sufficient ground has been carved out for condonation. He contends that the award passed by Lok Adalat is final and it shall be deemed to be a decree of civil court. He contends that the award passed by Lok Adalat is final and it shall be deemed to be a decree of civil court. In the present case, the award is passed with the consent of the parties and therefore, no appeal shall lie from the award of the Lok Adalat under section 96(3) CPC. On this premise Mr. Gupta pressed for the dismissal of all three appeals being not maintainable. To strengthen his point, he relies upon a latest judgment of Apex Court rendered in P.T. Thomas v. Thomas Job (2005) 6 S.C.C. page 478. 9. Mr. Gupta, while taking the case on second aspect also, further submits that the compromise decree signed by the counsel and not by the parties in person is also binding. According to him, if power of attorney holder can enter into an agreement or compromise on behalf of his principal, the counsel who is possessed of the requisite authorisation can also act on behalf of his client. In support of his contentions, Mr. Gupta relies upon a judgment of Honble Apex Court rendered in Byram Pestonji Gariwala v. Union Bank of India and others, AIR 1991 SC 2234. According to him, the judgment rendered in case Kamlesha Devis case (supra) and relied upon by Mr. Bhatia would not be applicable to the present case being distinguishable on facts. 10. Mr. Gupta then submits that fraud or any other allegation of that kind has not been averred in the present appeals and, therefore, the appellants cannot wriggle out of settlement already arrived at before the Lok Adalat through their counsel. Therefore, all the appeals merit dismissal from all counts. 11. Mr. M. L. Sharma adopts the arguments advanced by Mr. Gupta. Since, learned counsel for both the sides have entered into arena of discussion on merits, besides arguing on the miscellaneous applications for condonation of delay, I have also felt the necessity of commenting upon the issues raised herein. 12. The first important question crops up is as to whether the present three appeals are maintainable in the present set of circumstances or not. In my view, Mr. Gupta who has relied upon the judgment rendered by Honble Apex Court in case P.T. Thomas v. Thomas Job (supra), is on a very firm footing on this aspect. 12. The first important question crops up is as to whether the present three appeals are maintainable in the present set of circumstances or not. In my view, Mr. Gupta who has relied upon the judgment rendered by Honble Apex Court in case P.T. Thomas v. Thomas Job (supra), is on a very firm footing on this aspect. Their Lordships, in the said case, while dealing with the nature and binding effect of Lok Adalat award vis-a-vis section 96(3) of CPC and Order XXIII Rule 3, observed that Lok Adalat passes the award with consent of the parties and, therefore, there is no need either to re-consider or review the matter again and again, and such an award shall be final. It was further observed that since it is an order with the consent of the parties, it shall be deemed to be a decree of civil Court, therefore, an appeal shall not lie from the award of the Lok Adalat. In the aforesaid judgment, their Lordships have also considered a judgment of Andra Pradesh High Court rendered in Board of Trustees of the Port of Visakhapatnam v. Presiding Officer, Permanent, Lok Adalat-cum-Secy., District Legal Services Authority, (2000) 5 An LT 577, wherein it is observed as under: - "23 ........... the award is enforceable as a decree and it is final. On all fours, the endeavour is only to see that the disputes are narrowed down and make the final settlement so that the parties are not again driven to further litigation or any dispute. Though the award of a Lok Adalat is not a result of a contest on merits just as a regular suit by a court in a regular trial is, however, it is as equal and on a par with a decree on compromise and will have the same binding effect and be conclusive. Just as the decree passed on compromise cannot be challenged in a regular appeal, the award of the Lok Adalat, being akin to the same, cannot be challenged by any of the regular remedies available under law, including by invoking Article 226 of the Constitution and challenging the correctness of the award, on any ground..." 13. Just as the decree passed on compromise cannot be challenged in a regular appeal, the award of the Lok Adalat, being akin to the same, cannot be challenged by any of the regular remedies available under law, including by invoking Article 226 of the Constitution and challenging the correctness of the award, on any ground..." 13. In the aforesaid judgment, their Lordships while exhaustively commenting upon the benefits of Lok Adalat have observed that the basic features of the Lok Adalat are the procedural flexibilities and speedy trial of the disputes and there is no direct application of procedural laws like Civil Procedure Code and the Evidence Act while assessing the claim by the Lok Adalat; the parties to the dispute can directly interact with the judge through their counsel which is not possible in regular court of law; that Lok Adalat is another alternative to judicial justice and is a recent strategy for delivering informal, cheap and expeditious justice to the common man by way of settling disputes. It was further held that the Lok Adalat proceeds and disposes the case by arriving at a compromise or settlement, following the legal principles, equity and natural justice. Their Lordships while dealing with sections 21 and 22 of the Legal Services Authority Act, 1987, (L.S.A. Act for short) ultimately held that every award passed by a Lok Adalat with the consent of the parties, being final, shall be deemed to be a decree of civil court and as such under section 96(3) CPC, no appeal shall lie. 14. In a very recent judgment delivered by three Judges Bench of Honble Supreme Court rendered in State of Punjab & Anr. 14. In a very recent judgment delivered by three Judges Bench of Honble Supreme Court rendered in State of Punjab & Anr. v. Jalour Singh & Ors., Appeal (Civil) No. 522 of 2008 decided on 18.01.2008 (downloaded from internet), their Lordships although quashed the order of the Lok Adalat being unsustainable on the ground that it had exercised a power/jurisdiction not vested in it as it could not propose to increase the amount of compensation on its own as it amounted to assuming judicial role of adjudicatory nature and arrogated to itself the appellate power of the High Court while enhancing compensation in favour of the claimants whereas the order of the Lok Adalat was not passed by consent of the parties or in pursuance of any compromise or settlement between the parties, but while referring to the relevant provisions of L.S.A. Act, observed in para 12 as under:- "12. It is true that where an award is made by Lok Adalat in terms of a settlement arrived at between the parties, (which is duly signed by parties and annexed to the award of the Lok Adalat), it becomes final and binding on the parties to the settlement and becomes executable as if it is a decree of a civil court, and no appeal lies against it to any court. If any party wants to challenge such an award based on settlement, it can be done only by filing a petition under Article 226 and/or Article 227 of the Constitution, that too on very limited grounds. But where no compromise or settlement is singed by the parties and the order of the Lok Adalat does not refer to any settlement, but directs the respondent to either make payment if it agrees to the order, or approach the High Court for disposal of appeal on merits, if it does not agree, is not an award of the Lok Adalat. The question of challenging such an order in a petition under Article 227 does not arise. As already noticed, in such a situation, the High Court ought to have heard and disposed of the appeal on merits." 15. The question of challenging such an order in a petition under Article 227 does not arise. As already noticed, in such a situation, the High Court ought to have heard and disposed of the appeal on merits." 15. While following the ratio of the aforesaid two judgments of Honble Supreme Court, it can be safely said that once the award is made by Lok Adalat in terms of settlement arrived at between the parties, it becomes final and binding on the parties as if it is a decree of civil Court and no appeal shall lie. 16. A Single Bench judgment of this Court rendered in Kesar Singh v. Balbir Singh and another, 2004(1) SLJ, 189, on the same issue can also be read with advantage. In the said case, the claim petition arising out of an accident was compromised in Lok Adalat by the counsel for the claimant and an appeal was filed impugning the award on the ground that the counsel should have obtained consent of the claimant and as such he had mis-conducted himself. This Court while dismissing the appeal of the claimant/appellant, held that it is settled preposition of law that no appeal would lie against the consent decree. However, it can definitely be interfered with, if the same is the result of fraud and misrepresentation or such like factor. It was further held that the compromise entered into between the parties is binding and it is only under exceptional circumstances that the court may interfere with the same. The court did not find any exceptional circumstances in the aforesaid case. The grievance shown by the appellant in the present appeals is of not taking of consent from them by their counsel before entering into the settlement and that the second grievance is with regard to the amount of compensation being on lower side. No fraud, misrepresentation or such like objections have been pleaded in the appeals. Therefore, pleas taken herein cannot be considered as exceptional circumstances for interfering with the consent decree and, as such, no appeal would lie in such like factual backdrop. To be fair to Mr. Bhatia, I would like to mention here that question of maintainability of appeals was not the issue in Kamlesha Devis case (supra) relied by Mr. Bhatia. 17. Therefore, pleas taken herein cannot be considered as exceptional circumstances for interfering with the consent decree and, as such, no appeal would lie in such like factual backdrop. To be fair to Mr. Bhatia, I would like to mention here that question of maintainability of appeals was not the issue in Kamlesha Devis case (supra) relied by Mr. Bhatia. 17. Although on the point of maintainability, the present three appeals merit dismissal in the light of the aforesaid discussion, yet I intend to comment upon the second issue also on which Mr. Bhatia is relying upon very heavily. According to him, the compromise effected before Lok Adalat is in violation of Order XXIII Rule 3 of the Code of Civil Procedure. In my view, this plea is also not sustainable in view of the judgment rendered by Apex Court in Byram Pestonji Gariwalas case (supra), in which their Lordships have held that the expression "in writing and signed by the parties" includes counsel and agent of the party. In the said judgment, while discussing various other judgments, it was observed that it has always been universally understood that a party can always act by his duly authorized representative and if a power of attorney holder can enter an agreement or compromise on behalf of his principal, so can his counsel possessed of the requisite authorization by Vakalatnama can act on behalf of his client. It was further observed that not to recognize such capacity is not only to cause much inconvenience and loss to the parties personally, but also to delay the progress of proceedings in Court and if the legislature had intended to make such a fundamental change, even at the risk of delay, inconvenience and needless expenditure, it would have expressly so stated. 18. In the aforesaid judgment, their Lordships while dealing with Order XXXIII Rule 3; Order III Rule 1 and section 11 of Civil Procedure Code, observed as under: - "Para-40. 18. In the aforesaid judgment, their Lordships while dealing with Order XXXIII Rule 3; Order III Rule 1 and section 11 of Civil Procedure Code, observed as under: - "Para-40. Accordingly, we are of the view that the words "in writing and signed by the parties" inserted by the C.P.C. (Amendment) Act, 1976, must necessarily mean, to borrow the language of O.III, R. 1, C.P.C.: "any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader, appearing, applying or acting as the case may be, on his behalf: Provided that any such appearance shall, if the Court so directs, be made by the party in person". 19. Admitted position before me is that all the compromises/settlements arrived at before the Lok Adalat were signed by the respective counsel of the appellants and it is otherwise the case of the appellants themselves. They do not allege any fraud upon the court. No doubt, while relying upon Kamlesha Devis case (supra), a hyper technical plea is taken by Mr. Bhatia but in any considered view, the said judgment would be distinguishable on facts as in the aforesaid case one of the main objections raised was that it is in violation of Order XXXII Rule 7 of the Code of Civil Procedure, there being a special provision with regard to a case of minor. That is not the situation herein. At the cost of repetition, I may observe here that no exceptional circumstances have been carved out by the appellants calling for the interference of this Court for disturbing the settlement already arrived at between the parties. Therefore, in my considered view, Mr. Bhatia cannot derive any advantage from Kamlesha Devis case (supra), to strengthen his view point. No other point is left for discussion. 20. As a sequel to what is said hereinabove, in my firm view, not only the present appeals fail on the point of their maintainability, on merits as well the applicants/appellants have no case. Bhatia cannot derive any advantage from Kamlesha Devis case (supra), to strengthen his view point. No other point is left for discussion. 20. As a sequel to what is said hereinabove, in my firm view, not only the present appeals fail on the point of their maintainability, on merits as well the applicants/appellants have no case. Therefore, the miscellaneous applications for condonation of delay in which certainly there is a huge delay of 429 days and an attempt has been made by learned counsel to project sufficient cause, deserve to be dismissed. 21. Resultantly, all the three condonation application viz., Cond. (C) No. 178/2005; Cond. (C) No. 179/2005 85 Cond. (C) No. 180/2005 are hereby dismissed.