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2013 DIGILAW 563 (GUJ)

BHERAJI DOLAJI JAT v. HARNEK GURDEVSING SIKH

2013-09-16

A.G.URAIZEE, VIJAY MANOHAR SAHAI

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JUDGMENT : VIJAY MANOHAR SAHAI, J. 1. The short question that arises for consideration in this Letters Patent Appeal is that against the judgment of the learned Single Judge rendered in First Appeal decided under Section 173 of the Motor Vehicles Act, 1988, whether the Letters Patent Appeal is maintainable before a Division Bench ? 2. The brief facts are that the appellant filed Motor Accident Claims Petition No.307 of 1989 before the Motor Accident Claims Tribunal (Main) Banaskantha at Palanpur claiming compensation for the injuries received by him while the injured was travelling in Auto-rickshaw, which was dashed by Tanker No. DIG 4374. The Motor Accident Claims Tribunal by its award dated 28.09.1998 awarded an amount of Rs. 29,319/-, which was to be paid to the appellant by the owner and driver of the vehicle and the claim against the National Insurance Company was dismissed and the Insurance Company was exonerated as the cover note did not tally with the code numbers appended at the top of the cover note of any of the four Insurance Companies and it was not proved in accordance with law. 3. The judgment of the Tribunal dated 28.09.1998 was challenged by the appellant before this Court by filing First Appeal No.60 of 1999 under Section 173 of the Motor Vehicles Act, 1988 (for short the 'Act'), which has been dismissed by learned Single Judge by judgment dated 09.01.2001. The order passed by the learned Single Judge in the First Appeal has been challenged in this Letters Patent Appeal. 4. Ms. Archana R. Acharya, learned counsel for the appellant has urged that Section 100A of the Code of Civil Procedure, 1908 (for short the 'CPC") was inserted by the Act 104 of 1976 would not apply, as the First Appeal was not filed under Section 96 of the CPC, but had been filed under Section 173 of the Act and as such, the Letters Patent Appeal is maintainable. We deem it necessary to extract Section 100A CPC as amended from time to time. We deem it necessary to extract Section 100A CPC as amended from time to time. The Code of Civil Procedure (Amendment) Act, 1976 (Act 104 of 1976) by Section 38 substituted Section 100A with effect from 1.2.1977 which reads as under :- "100-A. No further appeal in certain cases :- Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie from the judgment, decision or order of such Single Judge in such appeal or from any decree passed in such appeal." 5. Section 10 of the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999), came into force on 1.7.2002, which reads as under :- "10. Substitution of new section for section 100A.- For section 100A of the principal Act, the following section shall be substituted, namely :- "100A. No further appeal in certain cases.- Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force,- (a) where any appeal from an original or appellate decree or order is heard and decided, (b) where any writ, direction or order is issued or made on an application under Article 226 or Article 227 of the Constitution, by a single Judge of High Court, no further appeal shall lie from the judgment, decision or order of such Single Judge." 6. Section 32 (2) (g) of Chapter IV of Code of Civil Procedure (Amendment) Act, 1999, provides in the Repeal and Savings, Section 32 (2) (g) reads as under :- "(g) the provisions of section 100A of the principal Act, as substituted by section 10 of this Act, shall not apply to or affect any appeal against the decision of a Single Judge or a High Court under article 226 or article 227 of the Constitution which had been admitted before the commencement of section 10; and every such admitted appeal shall be disposed of as if section 10 had not come into force;" 7. The Code of Civil Procedure (Amendment) Act, 2002 (22 of 2002) which came into force on 1.7.2002 which substituted a new Section 100A, is extracted as under :- "4. Substitution of new section for section 100A. - For section 100A of the principal Act [as substituted by section 10 of the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999)], the following section shall be substituted, namely:- "100A. No further appeal in certain cases. - Notwithstanding anything contained in any Letters Patent for any High Court or in any instrument having the force of law or in any other law for the time being in force, where any appeal from an original or appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment and decree of such Single Judge." 8. The amendment made in the year 2002 also did not permit any further appeal from the judgment of the learned Single Judge. A Division Bench of this Court in Bajaj Allianz General Insurance Company Limited and others v. Ambaben Wd/o. Sanjaybhai Rameshbhai Vasava and others, (AIR 2010 (NOC) 935)has held that Section 100A was inserted in the year 1977 to limit certain intra-Court appeals. The restrictions make it clear that Section 100A had been introduced to achieve certain finality to the issues thereby to providing an end to a litigation. It was further held that Section 100A as amended in the year 2002 would apply with effect from 1.7.2002 and no further intra-Court appeal would be maintainable in the High Court from the aforesaid date. 9. In another Division Bench decision of the Rajasthan High Court in R.S.R.T.C. and etc. v. Vaibhav Kumar and others, AIR 2007 Rajasthan 147, it had been held that Section 100A CPC bars an intra-Court appeal by whatever name it is called Letters Patent Appeal or Special Appeal where judgment of Single Judge passed under Section 173 of the Motor Vehicles Act is in its appellate jurisdiction. 10. The Motor Vehicles Act, 1988 was enacted by the Parliament for very expeditious disposal of the claim cases by the Tribunal so that the claimants who are victims of the motor accidents could get speedy justice and compensation. The entire effort of the Parliament was to ensure that the process of adjudication is not delayed by filing intra-Court appeal. 10. The Motor Vehicles Act, 1988 was enacted by the Parliament for very expeditious disposal of the claim cases by the Tribunal so that the claimants who are victims of the motor accidents could get speedy justice and compensation. The entire effort of the Parliament was to ensure that the process of adjudication is not delayed by filing intra-Court appeal. The Parliament had expressly barred the jurisdiction of Civil Courts under Section 175 of the Act. 11. The State of Gujarat has framed Gujarat Motor Vehicle Rules, 1989 (for short the Rules 1989) which has come into force w.e.f. 1.7.1989. Rule 229 of the Rules 1989 is reproduced below :- "229. Application of Code of Civil Procedure :- In so far as these rules make no provision or make insufficient provision, the Claims Tribunal shall follow the procedure laid down in the Code of Civil Procedure, 1908 (V of 1908) for the trial of suits." 12. The Rule 229 clearly lays down that where no provision has been made under the Rules, the Tribunal shall follow the procedure laid down in CPC. Rule 234 (3) of the Rules 1989 lays down that the provisions of sub-rule (1) and (2) of Order 41 and Order 21 in First Schedule to the CPC shall mutatis mutandis apply to appeals preferred to the High Court under Section 173. Neither the Act nor the Rules 1989 provide for filing any intra- Court appeal. 13. At this juncture, we deem it necessary to extract Section 173 of the Act which reads as under :- "173. Appeals.- (1) Subject to the provisions of subsection (2) any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court: Provided that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court unless he has deposited with it twenty-five thousand rupees or fifty per cent of the amount so awarded, whichever is less, in the manner directed by the High Court: Provided further that the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time. (2) No appeal shall lie against any award of a Claims Tribunal if the amount in dispute in the appeal is less than then thousand rupees." 14. The Motor Vehicles Act does not provide for any other appeal challenging the judgment passed under Section 173 of the Act. The expression "appeal" has not been defined in the Code of Civil Procedure. The Apex Court in Bolin Chetia v. Jogadish Bhuyan, (2005) 6 SCC 81 in paragraph 9 has held as under :- "The word appeal is not found defined either in the Act or in the Code of Civil Procedure, 1908 (hereinafter "the Code" for short). In its natural and ordinary meaning, an appeal is a remedy by which a cause determined by an inferior forum is subjected before a superior forum for the purpose of testing the correctness of the decision given by the inferior forum. The right of appeal is a substantive and valuable right of any appellant who is normally a person aggrieved by the impugned decision...." 15. The language of Section 173 of the Act does not admit two interpretations. The cardinal rule of interpretation is that the words used by the Parliament or Legislature has to be understood in its plain and natural meaning. The words used by the Parliament of the Legislature has to be interpreted as they stand in a statute unless the meaning is ambiguous. The words used in Section 173 of the Act are plain and clear and they have to be understood according to their plain and natural meaning. It provides an appeal under Section 173 against the judgment of the Tribunal. It does not provide for any further appeal or any intra-Court appeal. A right of appeal is a creature of a statute and unless this statute confers any further right of appeal, no violence can be done to the language used by the Parliament. The Act under Section 173 provides a statutory right of appeal and entitles an aggrieved person to lodge only one appeal in the High Court. Once an appeal has been filed under Section 173 of the Act in the High Court and it has been decided, the remedy of appeal stands exhausted. The scope of statutory right provided under Section 173 cannot be enlarged. Once an appeal has been filed under Section 173 of the Act in the High Court and it has been decided, the remedy of appeal stands exhausted. The scope of statutory right provided under Section 173 cannot be enlarged. We are of the considered opinion that Section 100A bars intra-Court Appeal against judgment rendered by the learned Single Judge under Section 173 of the Act and neither any Letters Patent Appeal or any special appeal is maintainable in the same High Court. The only remedy open to an aggrieved party is to challenge the judgment of learned Single Judge passed while exercising jurisdiction under Section 173 of the Act before the Apex Court. 16. Ms. Archana Acharya, learned counsel for the appellant has also urged that under Clause 15 of the Letters Patent, the appeal would be maintainable. Though we have held in the earlier part of this judgment that the Letters Patent Appeal would not be maintainable, but we proceed to test the argument of learned counsel for the appellant. 17. The Letters Patent Appeal was admitted on 8.9.2003. The question before us is as to whether the Letters Patent Appeal filed under Chapter-VI, Clause-15 of the Gujarat High Court Rules, 1993 (for short 'the Rules') or Letters Patent (Bombay) is maintainable against the judgment rendered by the learned Single Judge in First Appeal decided under Section 173 of the Act ? We may extract Chapter VI, Clause 15 of the Rules as under :- "CHAPTER-VI APPEALS UNDER CLAUSE 15 OF THE LETTERS PATENT 81. In all Letters Patent Appeals, the following paper shall be filed : 1. Memorandum of Appeal and a copy thereof; and 2. Two sets each containing copies of - (a) Judgment of the High Court, (b) Memorandum of Appeal, Petition or Application before the High Court' as the case may be, and (c) Judgment of the subordinate Court, if any : Provided that if any of the document referred herein above has already been included in a print copies of the same may not be supplied. 82. Appeals to be placed before Division Bench for admission - Appeals under clause 15 of the Letters Patent including appeals arising out of the provisions of Companies Act, 1956 shall be placed for preliminary hearing before Division Bench. 83. 82. Appeals to be placed before Division Bench for admission - Appeals under clause 15 of the Letters Patent including appeals arising out of the provisions of Companies Act, 1956 shall be placed for preliminary hearing before Division Bench. 83. No fresh Vakalatnama where advocate appeared in original proceeding.-An advocate who appeared in the original hearing may appear in Letters Patent Appeal without filing fresh Vakalatnama. 84. Provision of Order 41, CPC and rules re: regular appeals to apply to Letters Patent Appeals.- Except as otherwise provided in this Chapter, the provisions of Order 41 of the Code of Civil Procedure and the rules herein contained applicable to regular appeals shall apply to Letters Patent Appeals." 18. From the Rule, it is clear that an appeal under Clause 15 of the Letters Patent could be filed before the Division Bench under Clause 15 of the Letters Patent (Bombay) read with the Rules of the Court. It is relevant to point out over here that State of Bombay was bifurcated and State of Gujarat came into existence in the year 1960. High Court of Gujarat was constituted with effect from 1.5.1960. Section 28 of the Bombay Reorganisation Act, 1960 provided that from the appointed day i.e. 1.5.1960, there shall be separate High Court for the State of Gujarat. Section 30 provided that High Court of Gujarat shall have all such jurisdiction, powers and authority in respect of territories included in the State of Gujarat as was available, under the law in force, immediately before the appointed day. 19. The Act is a special Act and is a self sufficient code. It lays down that the Motor Accident Claims Tribunal is free to lay down its own procedure for deciding a claim petition filed before it. The judgment of the Tribunal could be challenged in an appeal under Section 173 of the Act. Special Act excludes the provision of general act. The Act is a Special Act to provide quick relief to the victims of the accident caused by motor vehicle. The Gujarat High Court Rules or the Code of Civil Procedure or Clause 15 of the Letters Patent (Bombay) are general acts and cannot override the provisions of the Act. Special Act excludes the provision of general act. The Act is a Special Act to provide quick relief to the victims of the accident caused by motor vehicle. The Gujarat High Court Rules or the Code of Civil Procedure or Clause 15 of the Letters Patent (Bombay) are general acts and cannot override the provisions of the Act. The Gujarat High Court Rules and the provisions of Letters Patent regulates the procedure of Gujarat High Court and they are general rules meant to apply to the proceedings before the Gujarat High Court, but the Letters Patent do not create any right of appeal but provide only forum for exercise of the right. The provisions of Motor Vehicles Act, 1988 is out of the sweep of the General Rules of Gujarat High Court or Civil Procedure Code or the Letters Patent (Bombay) as the Special Act, namely, the Motor Vehicles Act provides a complete machinery which is available to a victim, insurer, owner in case of a motor accident, to file a claim petition and claim compensation. After the award is given by the Tribunal and the appeal is decided under Section 173 of the Act which may be filed by any. But either party cannot file any Letters Patent Appeal before the High Court. The Act does not provide for filing of any further appeal against the judgment passed under Section 173 of the Act. The Letters Patent Appeal before a Division Bench of this Court challenging the judgment of Single Judge passed in an appeal under Section 173 of the Act would not be maintainable. 20. The Act being a Central Act will prevail over the provisions of general rules of the Court framed by the Gujarat High Court or Clause 15 of the Letters Patent (Bombay). Thus, the Letters Patent Appeal filed under Clause 15 would not be applicable to the Act and since the Act does not provide for any further appeal, apart from an appeal under Section 173 of the Act before the High Court, the present Letters Patent Appeal filed under Clause 15 of the Letters Patent would not be maintainable. 21. The maxim generalia specialibus non derogant is a Latin maxim which means universal things do not detract from specific things. It further means that general statements or provisions do not derogate from special statements or provisions. 21. The maxim generalia specialibus non derogant is a Latin maxim which means universal things do not detract from specific things. It further means that general statements or provisions do not derogate from special statements or provisions. The maxim generalia specialibus non derogant would apply as the Rules of the Court and clause 15 of the Letters Patent were not intended to be made applicable to the provisions of Motor Vehicles Act, 1988 as there was no intention of the Parliament to destroy the statutory right which was conferred by Section 173 of the Motor Vehicles Act, 1988 or to create any further right of appeal or Letters Patent Appeal and the argument by learned counsel for the appellant, if accepted, would be in derogation of the Act which is a self contained Code in itself. 22. Whether a Letters Patent Appeal would lie is a matter of procedure under the Rules of the Court. If it is not explicitly provided in the Rules of the Court that a Letters Patent Appeal could be filed challenging an appellate order passed under Section 173 of the Act by the Motor Accident Claims Tribunal, the Rules with regard to Letters Patent are not merely matters of procedure but also involve exercise of judicial authority by the Court hearing Letters Patent Appeal. The Letters Patent Court has to find out as to whether the appeal is permissible under the Letters Patent where the Special Act, namely, the Motor Vehicles Act, 1973 does not lay down any provision for filing any further appeal in the High Court. The Court hearing Letters Patent Appeal cannot assume the jurisdiction under the Rules of the Court or Clause 15 of the Letters Patent unless it is specifically provided under the Rules or the Special Act provides for such a remedy of filing further appeal under Letters Patent. In the absence of any explicit Rule or procedure provided by the Special Act, the only remedy available to the party whose appeal has been decided under Section 173 of the Act would be to challenge the judgment before the Apex Court, but no Intra-Court Appeal would be maintainable. The Appeal or any further appeal are creature of the Statute and unless the Special Act created a remedy for filing further Intra-Court Appeal, no appeal would lie under the Letters Patent. 23. The Appeal or any further appeal are creature of the Statute and unless the Special Act created a remedy for filing further Intra-Court Appeal, no appeal would lie under the Letters Patent. 23. A Full Bench of Bombay High Court in Mohd. Riyazur Rehman Siddiqui v. Deputy Director of Health Services, 2009 ACJ 585 has answered the question and held in paragraph 86 as under :- "86. Thus, we proceed to record and answer propositions of law formulated by us in paragraph 5 of the judgment as follows :- (a) Upon amendment of Section 100-A of the Code of Civil Procedure by Amending Act of 2002 with effect from 1st July 2002, no Letters Patent Appeal would be maintainable against the judgment rendered by the learned Single Judge of the High Court under the provision of Section 173 of the Motor Vehicles Act, 1988. (b) Appeal against the judgment of the learned Single Judge in exercise of its appellate jurisdiction under Section 173 of the Motor Vehicles Act, 1988 even with the aid of Clause 15 of the Letters Patent is not maintainable, and in fact, in both these situations, the Appellate Court would have no jurisdiction to entertain and decide such an appeal." We are in complete agreement with the view taken by the Full Bench of Bombay High Court. 24. For the aforesaid reasons, we are of the considered opinion that this Letters Patent Appeal filed under Clause 15 of the Letters Patent is not maintainable and is liable to be dismissed as not maintainable with liberty to the appellant to seek his remedy in appropriate forum. Section 173 of the Motor Vehicles Act, this is a special Act and provision of CPC are applicable and the Letters Patent Appeal would be barred under Section 100A CPC. Further after the appeal filed by the appellant had been decided under Section 173 of the Motor Vehicles Act, the only remedy available to the appellant is to challenge the judgment passed under Section 173 of the Act before the Apex Court. No further intra-Court appeal would lie in the High Court under Clause 15 of the Letters Patent or the Gujarat High Court Rules, 1993. 25. Accordingly, we dismiss this Letters Patent Appeal. Liberty is granted to the appellant to seek his remedy in an appropriate forum. There shall be no order as to costs.