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2011 DIGILAW 344 (GAU)

Dipak Sarkar v. Ratan Das

2011-04-19

UTPALENDU BIKAS SAHA

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JUDGMENT U.B. Saha, J. 1. The instant petition under Article 226 of the Constitution is filed by the petitioner for quashing the order dated 10.9.2009 passed in Misc. (Rev)12/09 arising out of TS (MAC) 64/08 whereby and whereunder the learned Member, Motor Accident Claims Tribunal (for short 'the Tribunal'), Sonamura, West Tripura declined to review his judgment and award dated 23.6.2009 passed in TS (MAC) 64 of 2008 on the ground that the application of the petitioner herein did not fulfil the ingredients laid down by the legislature under Order 47 Rule 1 of the Code of Civil Procedure. Moreso, the petitioner did not rectify his mistake during full trial of the aforesaid suit though he played as a regular player in the field of the proceeding till the disposal of the said suit before the Tribunal and as such he could not raise such question at the belated stage since he was barred by the principle of estoppels. 2. Heard Mr. K.Roy, learned counsel for the petitioner. Also heard Mr. K. Bhattacharjee, learned counsel appearing for the respondents No.2 and 3. None appears on behalf of the respondent No. 1/claimant even after receipt of the notice. 3. This matter is taken up for final disposal even in absence of the respondent No. 1/ claimant considering the fact that this court is not going to pass any order adverse to the interest of the respondent No. 1/claimant. 4. In T.S. (MAC) 64 of 2008, the learned Member, Motor Accident Claims Tribunal, Sonamura, West Tripura awarded a compensation of Rs.21,503/- to the respondent No. 1 /claimant making the owner of the offending vehicle who was defendant in the suit, i.e. the petitioner herein, liable to pay the same as the offending vehicle was not insured with any insurance company at the relevant time. The Tribunal also directed for payment of simple interest @7% p.a. on the awarded amount from the date of filing the claim petition till the date of payment within 30 days from the date of award. The Tribunal also directed for payment of simple interest @7% p.a. on the awarded amount from the date of filing the claim petition till the date of payment within 30 days from the date of award. The petitioner being aggrieved by the award and on recovery of the insurance policy relating to the offending vehicle for the relevant period preferred an application for review of the aforesaid judgment and award, which was registered as Misc (Rev.) 12 of 2009, but the learned Tribunal rejected the said application for review by the impugned order on the grounds as stated supra. Hence this petition. 5. Mr. Roy, learned counsel appearing for the petitioner at the very outset submits that the maintainability of the petition under Article 226 of the Constitution for setting aside an order of rejection passed in a review petition being a debatable one, the petitioner is praying for converting the instant writ petition filed under Article 226 of the Constitution to a petition under Article 227 of the Constitution Mr. Bhattacharjee, learned counsel appearing for the respondent insurance companies though raises objection regarding maintainability of the petition under Article 226 of the Constitution, but he did not object to the prayer for conversion. Accordingly, this petition is converted to a petition under Article 227 of the Constitution though in a case, a co-ordinate Bench of this Court had exercised its power under Article 226 of the Constitution while considering a similar issue as to whether a Motor Accident Claims Tribunal can review an award passed by it. 6. Mr. Roy submits that the instant petition is fully covered by a catena of decisions of this Court, more particularly the decision in Pranab Dhar Vs. Rajesh Deb & Anr. reported in AIR 2009 Gau 121 wherein this Court taking note of the decisions of the Apex Court noted, inter alia, as follows :- From the aforesaid views of the apex Court, it cannot be ruled out that when the legislature in a statute conferred a power either on a Court or on a Tribunal to adopt its own procedure for deciding an issue, then that Tribunal is not debarred to review its order for the interest of justice. Therefore, the said case of Kewal Chand Mimani (supra), does not help us to decide the issue involved in the instant case. Therefore, the said case of Kewal Chand Mimani (supra), does not help us to decide the issue involved in the instant case. As it appears from the sub-section (1) of Section 169 that legislature conferred the power on the Tribunal to decide its own summary procedure in an inquiry under Section168 of the Act subject to any rules that may be made in this behalf. Therefore, it cannot be said that the Tribunal is totally barred from following the general procedure of law as prescribed in the CPC including the provisions of review. 7. In para 19 of the aforesaid decision in Pranab Dhar (supra), this Court stated thus - In the case of Sri Phanilal Debnath Vs. Smt. Suniti Debnathandanr. [WP (C) No. 339 of 2005], the petitioner-owner of the offending vehicle, aggrieved by the award of the Tribunal whereby and whereunder the Tribunal fixed the liability to satisfy the award of compensation on him instead of the insurance company, though his vehicle was insured, preferred an application for review of the award contending that as the vehicle was insured with the respondent-insurance company at the time of accident, the liability of the compensation could not be on him. The Tribunal dismissed the said review petition basically on the ground that the petitioner did not contest the claim petition even though he was given adequate opportunity of hearing by issuing notice upon him. Aggrieved by the order of the Tribunal, the petitioner of that case filed a writ petition under Article 226 of the Constitution and this Court vide its order dated 22.05.2006, observed that 'normally this being the case of an error apparent on the face of the record or the discovery of the fact which could not be produced at the time of trial, the case ought to be remanded to the tribunal for review and judgement. Further considering the fact that the claim petition was filed in the year 1996, remanding the case at this stage will further delay the payment of compensation to the claimant and as such the entire matter needed to be disposed of by this Court itself at this stage for the ends of justice. As the vehicle was insured with the respondent-Insurance Company, some modification of the judgement and award is called for'. As the vehicle was insured with the respondent-Insurance Company, some modification of the judgement and award is called for'. Accordingly, this Court set aside the award keeping the quantum of compensation awarded in the judgement and award undisturbed, only with the modification that the amount of compensation would be paid by the respondent-insurance company and not by the petitioner. 8. Taking note of the entire facts and circumstances, this Court in Pranab Dhar (supra) also held "...the Tribunal has the power of review as the same is implicit in every Court of civil nature, even when the statute is expressly not armed with power of review, and also the tribunal is free to follow the general procedure prescribed under Order 47 Rule 1 CPC as the legislature vested wide power to it under subsection (1) of Section 169 regarding what should be the procedure for holding inquiry under Section 168 of the Act." While this Court decided the aforesaid case, the learned counsel appearing for the parties in that case did not raise their voice as to whether the Motor Accident Claims Tribunal is a Court or not, but as in this case it is urged by the learned counsel for the petitioner that the Motor Accident Claims Tribunal is also a court as it is exercising its judicial power while examining the evidence considering the Evidence Act and also following the provisions of the Code of Civil Procedure, this Court has to consider whether the Tribunal is a court or not. 9. It is settled by this time that when State empowers an authority with judicial power to decide a dispute between citizen and citizen or citizen and State and when that authority exercises such power applying the provisions of procedural law like CPC as well as the Evidence Act then it can be held that even though such authority is designated as Tribunal it has the trappings of a court of judicial nature and can be called as court. 10. The aforesaid view of this Court gets support from the decision of the Apex Court in Rajasthan State Road Transport Corporation, Jaipur Vs. Poonam Pahwa (Smt) & Ors. 10. The aforesaid view of this Court gets support from the decision of the Apex Court in Rajasthan State Road Transport Corporation, Jaipur Vs. Poonam Pahwa (Smt) & Ors. reported in (1997) 6 SCC 100 wherein the Apex Court while examining as to whether Order 21 Rule 1 of the Code would apply in a petition before the Motor Accident Claims Tribunal noted that the Tribunal being a statutory judicial Tribunal specifically constituted for adjudicating the claims arising out of the motor accidents has the trappings of a court. In the said decision, their Lordships also took note of the case of Bhagwati Devi Vs. I.S. Goel : 1983 ACJ 123 (SC) wherein the Apex Court following the principles in State of Haryana Vs. Darshana Devi : (1979) 2 SCC 236 held that the claims tribunals are the courts within the meaning of Section 25 of the Code. In Rajasthan State Road Transport Corporation (supra), the Apex Court also noted that the provisions of Order 21, Rule 1 are not in any way inconsistent with the provisions for awarding just and fair compensation in motor accident claims. The real purpose of awarding just and fair compensation to the victim of the accident or the legal heirs of such victim will be fulfilled by applying the principle of Order 21, Rule 1 of the Code so that the awarded is not deprived of the opportunity of gainfully utilising the amount under the award for want of notice about the deposit made by the judgment-debtor resulting in the sum remaining unutilised. There is no difficulty to apply the underlying principles under Order 21, Rule 1 of the Code in executing the award of compensation passed by the Tribunal and the Tribunal must be held to be competent to invoke the beneficial provisions of Order 21, Rule 1 of the Code. The aforesaid decision in Rajasthan State Road Transport Corporation has also been taken note in a subsequent decision in Nahar Industrial Enterprises Limited Vs. Hong Kong and Shanghai Banking Corporation : (2009) 8 SCC 646 wherein the Apex Court noted that the Motor Accident Claims Tribunal thus is a Court subordinate to the High Court and the High Court is entitled to exercise its power of revision and also superintendence over such court. 11. Hong Kong and Shanghai Banking Corporation : (2009) 8 SCC 646 wherein the Apex Court noted that the Motor Accident Claims Tribunal thus is a Court subordinate to the High Court and the High Court is entitled to exercise its power of revision and also superintendence over such court. 11. In view of the aforesaid decisions of the Apex Court when the provisions of Order 23 as well as Order 21, Rule 1 of the Code are applicable to the motor accident claim case then it can be said that though in strict sense the Motor Accident Claims Tribunal is not a civil court, but it has the power to correct the error apparent on the face of record by way of reviewing its earlier order under Order 47, Rule 1 of the Code after discovery of new and important matter or evidence which after the exercise of due diligence was not within the knowledge of either of the parties in the proceeding or could not be produced by them at the time when the award/decree was passed as the Tribunal is empowered by the legislature under Section (1) of Section 169 of the Motor Vehicles Act to decide what should be the procedure for holding inquiry in a summary proceeding under Section 168 of the Act subject to any Rule that may be made in this behalf. 12. In the instant case also it appears that the petitioner at the relevant time could not produce the documents relating to insurance of the offending vehicle even after due diligence. Therefore, according to this Court, it would be proper to set aside the impugned order dated 10.9.2009 passed by the learned Member, MACT, Sonamura, West Tripura in Misc.(Rev.) 12/09 arising out of TS (MAC) 64/08. Accordingly, the same is set aside. 13. Now, question remains whether it would be proper for this Court to modify the aforesaid judgment and award passed by the learned Tribunal without disturbing the award exercising the power either of judicial review or of supervisory in nature. 14. This Court in Sri Phanilal Debnath Vs. Smt. Suniti Debnath & Anr. Accordingly, the same is set aside. 13. Now, question remains whether it would be proper for this Court to modify the aforesaid judgment and award passed by the learned Tribunal without disturbing the award exercising the power either of judicial review or of supervisory in nature. 14. This Court in Sri Phanilal Debnath Vs. Smt. Suniti Debnath & Anr. : W.P. (C) No. 339 of 2005 modified the judgment of the learned Tribunal taking note of the fact that the offending vehicle was insured at the relevant time and kept the quantum of award undisturbed only with direction that the amount of compensation would be paid by the respondent insurance company and not by the petitioner therein. In the instant case also, this Court can do the same thing, but fact remains in the instant case, the insurance company, i.e. the National Insurance Co. Ltd. with whom the offending vehicle was insured at the relevant time was not made party in the claim petition. Therefore, according to this Court, it would not be proper to modify the award in question, rather it would be proper to remit the case to the learned Tribunal who will restore the review petition and decide the same afresh. 15. Order accordingly. 16. Before passing the final order in the review petition, the learned Tribunal will issue notice to all the parties including the insurance company and, if necessary, will allow the petitioner to produce the insurance policy of the offending vehicle, which has been subsequently recovered. All the parties are directed to appear before the learned Tribunal on receipt of the notice. The learned Tribunal shall dispose of the review petition at an early date, preferably within three months. 17. With the above observations and directions, this petition is allowed.