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2010 DIGILAW 1064 (HP)

Premi Devi v. Sushil Kumari

2010-08-25

DEEPAK GUPTA

body2010
JUDGMENT Deepak Gupta, J. 1. By means of this petition the petitioners have prayed that the order dated 18.03.2004 passed by the learned Motor Accident Claims Tribunal, Una may be quashed and set-aside. 2. Briefly stated the facts of the case are that Lekh Raj and Sita Ram were driver and owner of truck No. HP-21-3737. A claim petition was filed by the widow and minor children of Kimti Lal claiming that he had died in the accident involving this vehicle. It was further claimed that the accident occurred due to the rash and negligent driving of the driver Lekh Raj. This petition was contested by Lekh Raj and Sita Ram also and an award was passed on 18.3.2004 whereby the claimants were held entitled to total compensation of Rs. 2,13,800/- alongwith interest @ 9% per annum from the date of filing of the petition till realization of the amount. Both Lekh Raj and Sita Ram alongwith United India Insurance Company were held liable to pay this amount. The Insurance Company was directed to deposit this amount. 3. The Insurance Company aggrieved by the award filed an appeal being FAO No. 187 of 2004. This appeal was allowed by a learned Single Judge of this Court in the following terms: There was fundamental breach of the terms and conditions of the policy. The appellant-Insurance Company had proved and produced the driving licence verification from the original licensing authority at Dehradun. The driving licence bearing No. L-19842 was never issued in the name of Shri Lekh Raj as per the record. No evidence has been led by either the owner, i.e. respondent No. 7 or the driver, i.e. respondent No. 6 of the truck bearing No. HP-21-3737 to establish that the licence was genuine. The owner of the offending vehicle has not appeared in the witness box to say that he got the driving license of the driver verified before engaging him as such. As such, the Insurance Company cannot be held responsible to indemnify the insured. In view of the observations made hereinabove, the appeal is allowed and the impugned award dated 18.3.2004 is modified to the extent that the appellant-Insurance Company is absolved from indemnifying the insured, i.e. respondent No. 7. There shall be no order as to costs. 4. As such, the Insurance Company cannot be held responsible to indemnify the insured. In view of the observations made hereinabove, the appeal is allowed and the impugned award dated 18.3.2004 is modified to the extent that the appellant-Insurance Company is absolved from indemnifying the insured, i.e. respondent No. 7. There shall be no order as to costs. 4. Now, this present petition has been filed under Article 227 of the Constitution of India making a seemingly innocuous prayer that the award of the MACT be set-aside. I do not understand how this petition is maintainable because the award was in fact in favour of the petitioners here-in, in as much as the Insurance Company was held liable to pay compensation. This Court, however, held in the appeal filed by the Insurance Company that there was a fundamental breach of the terms and conditions of the policy and came to the conclusion that the license in favour of the driver was fake and the owner had not made any effort to prove that he had verified the license of the driver. It was in these circumstances the Insurance Company was absolved of his liability. 5. Shri K.S. Banyal, learned Counsel for the petitioners has placed reliance on the judgment of a learned Single Judge of this Court in Sukhbir Singh v. National Insurance Co. Ltd. Latest HLJ 2006 (HP) 1337. In that case though upto the Supreme Court the matter had been decided in favour of the Insurance Company but it was directed to deposit the awarded amount and was given the right to recover the same from the owner. However, when it started recovery proceedings a petition under Article 227 was filed by the owner and in this petition it was held as follows: 18. Yes, the petitioner did not challenge the award dated 27th February, 2003. Yes, to that extent it can be said that the award had assumed finality qua the petitioner. But then in the light of the aforesaid discussion, I have no hesitation in holding that the award by itself either in conclusive terms or otherwise did not at all hold the petitioner guilty of breach of the policy condition. On the other hand, this Court in the judgment dated 13th June 2003 (supra) held to the contrary. But then in the light of the aforesaid discussion, I have no hesitation in holding that the award by itself either in conclusive terms or otherwise did not at all hold the petitioner guilty of breach of the policy condition. On the other hand, this Court in the judgment dated 13th June 2003 (supra) held to the contrary. In the light of the law laid down by their Lordships of the Supreme Court, this Court cannot allow a situation to come about where despite the absence of such a finding, the petitioner is asked to pay to respondent No. 1. Any finding, therefore returned by the Tribunal in the award dated 27th February, 2003 if at all it could be construed qua or against the petitioner has thus to be declared as nonest in the eyes of law. 6. I have my doubts about the correctness of this decision. In my view a matter which has been decided upto the level of High Court, leave aside the Supreme Court, cannot be reopened by the High Court in a petition filed under Article 227 of the Constitution of India. It appears that this question was never gone into in that case. Article 227 vests the High Court with powers of superintendence over the lower Courts, and reads as follows: Power of superintendence over all courts by the High Court.- (1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercise jurisdiction. (2) Without prejudice to the generality of the foregoing provisions, the High Court may- (a) call for returns from such courts; (b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and (c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts. (3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practicing therein; Provided that any rules made, forms prescribed or tables settled under Clause (2) or Clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor. (4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces. 7. A bare perusal of Article 227 of the Constitution of India clearly shows that the powers of the superintendence vested in the High Court relate only to Courts and Tribunals which are subordinate to it. In my view, such powers of superintendence cannot be exercised in respect of judgments of coordinate Courts. Can this Court exercise powers of superintendence under Article 227 to virtually set at naught a judgment of another learned Single Judge of this Court? The answer has to be emphatic No. Since the question as to what is the jurisdiction of the Court under Article 227 was not considered in case Sukhbir Singh (supra) in my considered opinion this judgment has to be held per incurium. 8. Furthermore in Sukhbir Singh's case, the learned Single Judge came to the conclusion that in the award the petitioner was not held guilty of the breach of the policy conditions. 9. In the present case, the learned Single Judge has cle arly held that there has been fundamental breach of the terms and conditions of the policy and therefore, the Insurance Company was exonerated. As such, the judgment relied upon by the petitioner is not applicable to the present case. 10. In view of the above discussion, I find no merit in the petition, which is accordingly dismissed. No order as to costs.