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2009 DIGILAW 671 (CAL)

National Insurance Co. Ltd. v. Probir Ganguly

2009-08-27

BHASKAR BHATTACHARYA, PRASENJIT MANDAL

body2009
Judgment : BHASKAR BHATTACHARYA, J. (1) This appeal is at the instance of the Insurance Company in a proceeding under Section 166 of the Motor Vehicles Act and is directed against an award dated 30th April, 2003 passed by the learned Motor Accident Claims Tribunal, 11th Court, Alipore, in M.A.C. Case No.92 of 1996 thereby awarding a sum of Rs.2,99,000/- as compensation against the loss of earning capacity. After arriving at such figure, the learned Tribunal below decided to reduce the said amount to Rs.2,55,000/-as the claimant had in the claim-application limited his claim to the said amount. The learned Tribunal further held that on a previous occasion a sum of Rs.55,000/-as compensation was received by the claimant by way of mutual settlement with the Insurance Company and, therefore, the said sum of Rs.55,000/- should be further deducted and, thus, the Insurance Company was directed to pay Rs.2 lakh as compensation within two months from the date of the said order with a further clause that in default of such payment within the said time, the amount of compensation should carry interest at the rate of 9% per annum from the date of filing of the application till actual payment. Being dissatisfied, the Insurance Company has come up with the present appeal. (2) There is no dispute as regards the involvement of the errant vehicle insured by the National Insurance Company Ltd., the appellant before us, and the fact that the victim was injured due to such accident on 10th July, 1993. It appears from record that after the accident, there was a settlement between the claimant who is an Officer of the Calcutta Police Force and the Insurance Company under a scheme known as Jald Rahat Yojana Scheme and pursuant to such agreement, the claimant received a sum of Rs.55,000/- as compensation from the Insurance Company in full and final settlement of the dispute. In spite of receiving the said amount, the victim subsequently filed an application under Section 166 of the Act thereby giving rise to M.A.C. Case No.92 of 1996 on the ground that he was entitled to get further compensation of Rs.2,55,000/-as mentioned earlier. In spite of receiving the said amount, the victim subsequently filed an application under Section 166 of the Act thereby giving rise to M.A.C. Case No.92 of 1996 on the ground that he was entitled to get further compensation of Rs.2,55,000/-as mentioned earlier. (3) After entering appearance in the proceeding, the Insurance Company filed an application disputing the maintainability of the application under Section 166 of the Act on the ground that in the past there being a settlement between the parties, no further application under Section 166 of the Act was maintainable. The learned Tribunal, however, rejected the said application vide Order No.30 dated 10th August, 1999 with a finding that the application under Section 166 of the Act was maintainable in spite of earlier settlement between the parties out of Court. (4) It appears from record that the Insurance Company being dissatisfied with the said Order No.30 preferred an application under Article 227 of the Constitution of India being C.O. No.2476 of 2001 before this Court but the said application was dismissed for default on 27th February, 2002. Subsequently, the Insurance Company filed an application for restoration of the said proceeding being C.A.N. 2047 of 2002 which was again dismissed for default on 20th June, 2003 but thereafter till today the Insurance Company did not try to restore the said application. Ultimately, the learned Tribunal, by the award impugned in this appeal, disposed of the proceeding as indicated earlier. Being dissatisfied, the Insurance Company has come up with the present appeal. (5) Mr. Banik, the learned advocate appearing on behalf of the claimant/respondent has raised a preliminary question as to the maintainability of the present appeal. According to Mr. Banik, in the present proceeding under Section 166 of the Act the Insurance Company having failed to take any leave under Section 170 of the Act, the present appeal at the instance of the Insurance Company is not maintainable as the points raised by the Insurance Company in this appeal are beyond the scope of Section 149(2) of the Act. He, therefore, prays for dismissal of the appeal on preliminary ground. (6) Mr. Singh, the learned advocate appearing on behalf of the appellant, however, has opposed the aforesaid contention of Mr. He, therefore, prays for dismissal of the appeal on preliminary ground. (6) Mr. Singh, the learned advocate appearing on behalf of the appellant, however, has opposed the aforesaid contention of Mr. Banik and has contended that his client has raised a pure question of law as to the jurisdiction of the Tribunal to entertain the application under Section 166 of the Act in view of the earlier settlement between the parties in terms of Section 152 of the Act and, therefore, his client was entitled to entertain the present appeal. Mr. Singh further contends that although his client in the past filed an application under Article 227 of the Constitution of India challenging the Order No.30 by which the point now sought to be raised before this Court was decided against his client, the said Revisional application was not disposed of on merit and, therefore, by taking aid of Section 105 of the Code of Civil Procedure his client should be entitled to challenge the said interlocutory Order No.30 which was not appealable. Mr. Singh, therefore, submits that the present appeal is maintainable at the instance of his client for the purpose of disputing the lack of inherent jurisdiction of the Tribunal to entertain the dispute. (7) Therefore, the preliminary question that arises for determination in this appeal is whether the present appeal at the instance of the Insurance Company is maintainable notwithstanding the fact that the Insurance Company took no leave in terms of Section 170 of the Act before the Tribunal below. After hearing the learned counsel for the parties and after going through the decision of the Supreme Court in the cases of (1) R. Mannakatti and Anr. vs. M. Subramanian and Anr reported in 2006(2) T.A.C. 515 and (2) National Insurance Co. Ltd. vs. Nicolletta Rohtagi and Ors. reported in (2003) 1 WBLR (SC) 1, we find that there is hardly any scope of doubt that in an appeal preferred by the Insurance Company, where no permission in terms of Section 170 of the Act has been given to the Insurance Company, it cannot as an appellant raise any question other than those referred to in Section 149 (2) of the Act and therefore, in this appeal, there is no scope of going into the question raised by Mr Singh. It is now a settled law that a right of appeal is a creature of Statute and its scope is determined by the Statute. If the legislature decides to grant only a limited right, the Appellate Court and the appellant are bound by such limit. We are quite conscious that in a given situation, due to the restriction imposed by the Motor Vehicles Act, the Insurance Company may not be able to prefer an exhaustive appeal although it is seriously aggrieved by the Award due to some gross illegality committed by the Tribunal, yet, we are unable to accept the contention of Mr. Singh, the learned advocate for the appellant, that in those situations the Insurance Company will be totally remediless. If the illegality, mentioned above, is of such a nature it is a fit case for invocation of the jurisdiction under Article 227 of the Constitution of India, the Insurance Company can definitely move the High Court under Article 227 of the Constitution of India challenging the Award. For instance, if a Tribunal disposes of a claim-application ex parte on the assumption that in spite of service of notice, the Insurance Company did not contest the proceedings, but in fact, the office of the Tribunal even did not issue any notice to the Company, the insurer can definitely complain before the High Court pointing out the illegality committed by the Tribunal under Article 227 of the Constitution. Similarly, if the Tribunal, while calculating the amount of compensation, decides to accept the notional income of the deceased as Rs.1,00,000/-per annum although the Statute prescribes the same to be only Rs.15,000/-per annum, the Insurance Company can certainly invoke the jurisdiction of the High Court under Article 227 of the Constitution of India. We do not want to give further examples. The fact remains that the right of a litigant to move the High Court under Article 227 of the Constitution of India cannot be taken away by enacting any statutory provision and such right is available even if the right of appeal is totally barred by the Statute. We do not want to give further examples. The fact remains that the right of a litigant to move the High Court under Article 227 of the Constitution of India cannot be taken away by enacting any statutory provision and such right is available even if the right of appeal is totally barred by the Statute. In this connection, we may profitably refer to the following observations of the Apex Court in the case of L. Chandrakumar vs. Union of India reported in A.I.R. 1997 SC 1125 where a Bench consisting of seven Judges while considering the question of ouster of jurisdiction of the High Courts under Article 227 of the Constitution of India by creation of Tribunals under Articles 323A or 323B of the Constitution of India made the following observations: We also hold that the power vested in the High Courts to exercise judicial superintendence over the decisions of all Courts and Tribunals within their respective jurisdictions is also part of the basic structure of the Constitution. This is because a situation where the High Courts are divested of all other judicial functions apart from that of constitutional interpretation, is equally to be avoided. (8) In view of the reasoning adopted by us, we hold that clause 2(d) of Article 323A and Clause 3 (d) of Article 323B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the "exclusion of jurisdiction" clauses in all other legislations enacted under the aegis of Article 323A and 323B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. At this juncture, we are also quite alive to the decision of the three- Judge-Bench of the Apex Court in the case of Sadhana Lodh vs. National Insurance Co. Ltd and another reported in A.I.R. 2003 SC 1561 where the said Bench held that by taking recourse to the provision of Article 227 of the Constitution of India the scope of an appeal by the Insurance Company cannot be enlarged. Ltd and another reported in A.I.R. 2003 SC 1561 where the said Bench held that by taking recourse to the provision of Article 227 of the Constitution of India the scope of an appeal by the Insurance Company cannot be enlarged. In other words, the Apex Court held that the points other than those prescribed under Section 149(2) of the Motor Vehicles Act could not be taken by the Insurance Company in guise of an application under Article 227 of the Constitution of India. The said decision and the other similar decisions, in our view, should not be interpreted to mean that even in a genuine case, where the ingredients of exercising the superintending jurisdiction of the High Court are present, the High Court is powerless because of the prohibition of Section 149(2) of the Act to interfere with the Award. (9) In the said case of Sadhana Lodh (supra), that the Apex Court was conscious of such power of the High Court and the remedy of an aggrieved litigant under Article 227 of the Constitution of India will appear from the following observations made in paragraph 7 of the judgment: The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior Court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or re-weigh the evidence upon which the inferior Court or Tribunal purports to have passed the order or to correct errors of law in the decision. (10) Therefore, notwithstanding the bar created under Section 149(2) of the Act which is applicable only to an appeal preferred under Section 173 of the Act, an Insurance Company will be entitled to challenge an Award as illegal only if the Company can show that the illegality in the Award comes within the parameters of the exercise of jurisdiction under Article 227 of the Constitution of India as mentioned above by the Apex Court in the case of Sadhana Lodh (supra). If we hold otherwise, such interpretation will deprive a litigant of his constitutional right guaranteed under the Article 227 of the Constitution of India which is the basic structure of our Constitution as pointed out in the case of L. Chandrakumar (supra). (11) In this connection, it will not be out of place to refer to the following observations of the Supreme Court in the recent decision in the case of Kishore Kumar Khaitan vs. Praveen Kumar Singh reported in AIR 2006 SC 1474 where the Apex Court reiterated the scope of Article 227 of the Constitution of India in further details: (12) The jurisdiction under Article 227 of the Constitution may be restrictive in the sense that it is to be invoked only to correct errors of jurisdiction. But when a court asks itself a wrong question or approaches the question in an improper manner, even if it comes to a finding of fact, the said finding of fact cannot be said to be one rendered with jurisdiction and it will still be amenable to correction at the hands of the High Court under Article 227 of the Constitution. The failure to render the necessary findings to support its order would also be a jurisdictional error liable to correction. We, thus, are not at all impressed by the submission of Mr Singh that his client is totally remediless. (13) We, consequently, find no substance in the contention of Mr Singh that in this appeal we should enter into the question raised by him notwithstanding the fact that his client did not get any permission in terms of Section 170 of the Act before the Tribunal below and the same does not relate to any of the points referred to in Section 149(2) of the Act. (14) We make it clear that we have not gone into the question whether the point raised by the appellant in this appeal comes with the purview of Article 227 of the Constitution of India as the same is beyond the scope of this appeal. It is needless to mention that the dismissal of this appeal will not stand in the way of the appellant in seeking appropriate remedy before the appropriate forum in accordance with law. (15) Accordingly, the appeal is, thus, dismissed as not maintainable. In the facts and circumstances, there will be, however, no order as to costs.