Mithilesh Kumar S/o Santosh Kumar v. Joga Ram S/o Alalsaram
2017-04-27
SANGEET LODHA
body2017
DigiLaw.ai
JUDGMENT : Sangeet Lodha, J. This petition is directed against order dated 28.5.11 passed by the Motor Accident Claims Tribunal, Phalodi, whereby an application preferred on behalf the applicants seeking review of the award for shifting the liability of payment of compensation fastened upon the petitioner no.1 herein to the employer Union of India, stands rejected. 2. Learned counsel appearing for the petitioners contended that at the time of accident, the petitioner no.1 was discharging his official duty and therefore, his employer Union of India is vicariously liable for the payment of compensation to the claimants and thus, the Tribunal has seriously erred in rejecting the review petition preferred inter alia by the Ministry of Defence accepting the liability. Learned counsel submitted that on account of modification of the award, no loss was likely to be caused to the claimants and thus, there was no justification for the Tribunal to reject the review petition. 3. On the other hand, counsel appearing for the respondents submitted that the Motor Accident Claims Tribunal is not vested with the power to review the award and therefore, the review petition preferred was liable to be rejected on this count alone. Learned counsel submitted that a specific issue i.e. issue no.2 was framed by the Tribunal as to whether the petitioner no.1 herein, the driver of the vehicle, at the time of accident occurred was not working in the interest and benefits of his employer and while adjudicating the said issue a categorical finding has been recorded that it is not proved that the petitioner no.1 herein at the time of accident was driving the vehicle in the interest and for benefits of his employer and therefore, even otherwise, exercising the power of review, the Tribunal could not have entered into in re-appreciation of evidence and thus, the order impugned passed does not suffer from any infirmity or illegality so as to warrant interference by this court. 4. I have considered the rival submissions and perused the material on record. 5. As per provisions of Section 168 of the Act of 1988, after holding an inquiry into the claim, the Tribunal is required to make an award determining amount of compensation which appears to it to be just and specify the person or persons to whom compensation shall be paid. 6.
5. As per provisions of Section 168 of the Act of 1988, after holding an inquiry into the claim, the Tribunal is required to make an award determining amount of compensation which appears to it to be just and specify the person or persons to whom compensation shall be paid. 6. Section 173 makes provision for appeal against the award passed by the Tribunal but there is no provision incorporated empowering the Tribunal to review the award passed. However, Section 169 which deals with procedure and powers of Tribunal provides that in holding an inquiry under Section 168 for determination of claim for compensation subject to any rules that may be made in this behalf, the Tribunal may follow such summary procedure as it thinks fit. 7. Section 176 empowers the State Government to make rules for the purpose of carrying into effect the provisions of Sections 165 to 174 of the Act of 1988. 8. It is to be noticed that in exercise of the powers conferred under the various sections of the Act of 1988 including Section 176, the State Government has framed Rajasthan Motor Vehicles Rules, 1990 (for short "the Rules"). The Chapter X of the Rules deals with the Claims Tribunals. 9. Rule 10.27 of the Rules, makes provision that the power vested in the Civil Court under Sections 30, 32, 34, 35(a), 75(a) and (c), 76, 77, 94, 95, 132, 133, 144, 147, 148, 149, 151, 152 & 153 may be exercised by the Claims Tribunal so far as they may be applicable, subject to the provisions of Section 174 of the Act of 1988. By virtue of Rule 10.28, the provisions of Order 21 CPC, are also made applicable to the proceedings before the Claims Tribunal. But then, the provisions of Section 114 CPC or Order 47, Rule 1 CPC relating to the powers of review have not been made applicable to the proceedings before the Tribunal. This court had occasion to deal with the issue relating to power of the Tribunal to review the award in 'Smt. Imiya v. United India Insurance Co. Ltd. & Ors." (S.B. Civil Writ Petition No.2404/05), decided on 18.11.08.
This court had occasion to deal with the issue relating to power of the Tribunal to review the award in 'Smt. Imiya v. United India Insurance Co. Ltd. & Ors." (S.B. Civil Writ Petition No.2404/05), decided on 18.11.08. After consideration of the provisions of the Act of 1988 and the Rules, the court held: "The Tribunal as constituted under the Motor Vehicles Act while dealing with the claim application even when having the trappings of the Civil Court, its jurisdiction is specifically denied by the statutory provisions and the rules framed thereunder. So far as the powers of the Civil Court that are vested in the Claims Tribunal and procedure to be followed by the Claims Tribunal are concerned, such aspects have specifically been delineated in Section 169 of the Act and Rule 10.27 and Rule 10.28 of the Rajasthan Motor Vehicles Rules, 1990. Significant it is to notice that the provisions of Section 114 CPC or Order 47, Rule 1 CPC, relating to powers of review have not, as such been made applicable to the proceedings before the Claims Tribunal. The Tribunal, in the opinion of this Court, had no jurisdiction to deal with a so-called review application moved under Order 47 CPC and the impugned order, passed on a so-called review application, cannot be upheld." (emphasis added) 10. In this view of the matter, in absence of any provision conferring power upon the Tribunal to review the award, after passing of the award, the Tribunal becomes functus officio and it cannot review the determination made regarding entitlement of the compensation or the liability to pay the compensation and thus, the review petition preferred by the petitioners could not have been entertained by the Tribunal. 11. As a matter of fact, even exercising the power of review, if so vested, the Tribunal could not have varied the findings recorded on the specific issue framed, by re-appreciating the evidence on record. 12. Thus, the order impugned passed by the Tribunal, rejecting the review petition cannot be interfered with by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 13. But, in any case, if the employer of the petitioner, the Union of India, considers it appropriate to bear the liability fastened upon its employee, nothing prevents it from satisfying the award passed by the Tribunal.
13. But, in any case, if the employer of the petitioner, the Union of India, considers it appropriate to bear the liability fastened upon its employee, nothing prevents it from satisfying the award passed by the Tribunal. Rather, on the facts and in the circumstances of the case, if the claimants have not been paid the compensation despite award being passed in their favour way back on 23.9.09, it would be appropriate that the amount of compensation in terms of the award is paid by the Union of India to the claimants forthwith with liberty to recover the same from its employee, the petitioner no.1 herein. 14. In the result, the writ petition is dismissed with the observations as above. No order as to costs.