Full Judgment
1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE17h DAY OF JULY ,2018 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S. DIXIT M.F.A NO.9994 OF2013(MV) C/w M.F.A NO.9993 OF 2013 IN M.F.A NO.9994 OF 2013 BETWEEN:
1. Sri. Mallesh, S/o Sanna Sura Shetty, Aged about 41 years, Occ: Agriculture, R/at No.45, Dadiganahalli, Channarayapatna, Hassan District.
2.
3. Sri. Ravi, S/o Sanna Sura Setty, Aged about 38 years, Occ: Coolie, R/at No.607, Mahadeshwara Badavane, 10th Cross, Mysuru. Smt. Saraswathi, W/o Sri. Devaraju, Aged about 37 years, Occ: Housemaid, R/of No.496, 4th Main, 17th Cross, V. Pura, Krishnaraja, Mysuru - 560 008.
4. 2 Sri. Nagaraju, S/o Sanna Sura Setty, Aged about 35 years, Occ: Coolie, R/of Chaitanya Hi-tech Engg., Co., No.21, K.G. Industrial Estate, Bengaluru - 560 079. ... Appellants Sri. Gurumurthy, S/o Range Gowda, No.7812, 2nd Stage, Sangameshwara Badavane, Hassan - 573 201. (By Sri. Suresh. M. Latur, Advocate) AND:
1.
2. The Regional Manager, National Insurance Co. Ltd., Subharama Complex, M.G.Road, Bengaluru - 560 001. ... Respondents (By Sri.Ravish Benni, Advocate for R-2 R-1 served) This Miscellaneous First Appeal is filed under section 173(1) of MV Act against the judgment and award dated 10.07.2013 passed in MVC No.2118/2012 on the file of the I Addl. SCJ & M.A.C.T, Bengaluru returning on the point of jurisdiction with a direction to present before the proper jurisdictional tribunal. IN M.F.A NO.9993 OF 2013 BETWEEN:
1. Sri. Mallesh, S/o Sanna Sura Shetty, 2. 3.
4. 3 Aged about 41 years, Occ: Agriculture, R/at No.45, Dadiganahalli, Channarayapatna, Hassan District. Sri. Ravi, S/o Sanna Sura Setty, Aged about 38 years, Occ: Coolie, R/at No.607, Mahadeshwara Badavane, 10th Cross, Mysuru. Smt. Saraswathi, W/o Sri. Devaraju, Aged about 37 years, Occ: Housemaid, R/of No.496, 4th Main, 17th Cross, V. Pura, Krishnaraja, Mysuru - 560 008. Sri. Nagaraju, S/o Sanna Sura Setty, Aged about 35 years, Occ: Coolie, R/of Chaitanya Hi-tech Engg., Co., No.21, K.G. Industrial Estate, Bengaluru - 560 079. ... Appellants (By Sri. Suresh. M. Latur, Advocate) AND:
1. Sri. Gurumurthy, S/o Range Gowda, No.7812, 2nd Stage, Sangameshwara Badavane, Hassan - 573 201.
2. 4 The Regional Manager, National Insurance Co. Ltd., Subharama Complex, M.G. Road, Bengaluru - 560 001. ... Respondents (By Sri. Ravish Benni, Advocate for R-2 R-1 served) This Miscellaneous First Appeal is filed under section 173(1) of MV Act against the judgment and award dated 10.07.2013 passed in MVC No.2117/2012 on the file of the I Addl. SCJ & M.A.C.T, Bengaluru returning on the point of jurisdiction with a direction to present before the proper jurisdictional tribunal. These Miscellaneous First Appeals coming on for Admission, this day, the Court delivered the following:
JUDGMENT
These two appeals are directed against the order dated 10.07.2013 whereby the MACT, Bengaluru has returned the original claim petitions to the claimants on the ground of lack of territorial jurisdiction, for presenting the same before jurisdictional Tribunal.
2. After the filing of these appeals, the Office/Registry, after doing scrutiny has raised an objection as to the maintainability of these appeals, presumably in the absence of a judgment and award. 5 The Office not being satisfied with the explanation offered by the counsel on record, has posted these appeals for the consideration of tenability of the office objection.
3. Learned counsel for the appellants submit that the impugned order of the MACT returning the claim petitions as they are, for presentation before the jurisdictional Tribunal amounts to a judgment and award and therefore, the same are appealable. He further submits that the objection raised by the Office after scrutiny, is too technical in nature and therefore, to do justice to the aggrieved, the appeal should be taken up on merits on the premises that the impugned orders otherwise also are appealable under Section 172(1) of the Indian Motor Vehicle Act, 1988 (hereinafter ‘Act’).
4. The learned counsel for the contesting respondent-insurer per contra submits that it has long been settled position of law that a right of appeal being a substantive right arises only as a creature of law and 6 subject to the limitations and conditions prescribed by the law maker; the right of appeal granted under Section 173(1) of the Act is only against an award and that the impugned orders not being the awards, the appeals are incompetent. He further submits that in the guise of interpretation of law, a right of appeal which otherwise does not exist cannot be created by the Court.
5. Adumbrating his objection to the maintainability of the appeals against an impugned orders, the learned counsel for the respondent submits that the non-availability of right of appeal per se does not mean that the orders impugned herein are immuned from the challenge and that the challenge can be in writ jurisdiction vested in this Court under Articles 226 and 227 of the Constitution of India.
6. I have heard the learned counsel for the appellants and the learned counsel for the respondent- insurer. I have perused the appeal papers and the statute book. 7 Section 173(1) of the Act reads as under: (1) “Subject to the provisions of sub-section (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 is required to pay any deposited with person who amount in terms of such award shall be entertained by the High court unless he has thousand rupees or fifty per cent of the amount so awarded, whichever is less, in the manner directed by the High Court; it twenty-five that further Provided 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.” (Rest of the provisions of this Section are omitted not being relevant for our purpose.) In the Act, the expression “award” is not defined. Therefore, obviously, the question as to which order of the MACT amounts to award crops up for consideration.
7. In the case of Yellavva and others v. National Insurance Co. and another (AIR (2007) SC2582, the 8 Apex Court considered the said question in a different contest. At paragraph 16, the Apex Court stated “the question which is required to be considered is what would be the meaning of the term award when such a contention is raised-----“ At Paragraph 18, the Apex Court indicates the features of an award by stating “--- Keeping in view the provisions of Section 168 of the Act, there cannot be any doubt whatsoever that an award for enforcing the right under Section 140 of the Act is also required to the parties concerned have filed their pleadings and have given a reasonable opportunity of being heard. A Claims Tribunal, thus, must be satisfied that the conditions precedent specified in Section 140 of the Act have been substantiated, which is the basis for making an award.” The learned author, Sri. A.K.Bhat, in his legal classic “Motor Accidents and Claims” First Edition February, 2018 published by Swatantra Prakashana, Bengaluru, at paragraph 7.1.1, at page 340 writes, “----- However, it can be said that an award means, an order 9 passed by the tribunal adjudicating upon the claim for compensation determining the amount of compensation payable, along with cost and interest, if any, by all or any of the respondents, and the insurer, including determination of an inter se claim between the respondents and the insurer in such claim. The Full Bench (Five Judges) of the Madhya Pradesh High Court, in the case of Oriental Insurance Co. v Chittaman and other( AIR1995 Madhya Pradesh
229) had also considered the meaning of the term “award”. the decision or deciders, rendered by arbitrators or 12. ‘Award’ is explained in Black’s Law Dictionary, Fourth Edition, at Page 174 as meaning - “to grant, concede, of adjudge to; to give or assign by sentence or judicial determination…… determination commissioners, or other private or extra judicial controversy a the writing or submitted such decision.” As document award, as is a document determination of a matter in dispute by a person competent to adjudicate or determine the dispute. There is nothing in Chapter X or XII of the Act to indicate that any different meaning expression in 173 of the Act. The decision of upon them; also incorporating the adjudication or to embodying generally understood, has been attributed to the 10 liability under Section 140 is an award which can be challenged under Section 173. A decision least briefly.
13. …… The Motor Vehicles Act, 1988 does not define an award. It must, therefore, follow that the expression ‘award’ contained in the provisions referred to above carries its general meaning and content. under Sec.140 is a decision on a claim for compensation thereunder. It must be passed after following the procedure contemplated in Section 166 (2) of the Act. It must indicate the findings and the reasons, at These attributes of “determination” of a claim under Section 140 would certainly make the “determination” an award for the purpose of Section 166 as well as 173 of the Act. With great respect, we are of the opinion that the decision in Gaya Prasad’s case (1992 MPLJ485 (FB) does not lay down good law, to the extent it holds that an appeal does not lie under Section 173 of determination of a claim under Section 140 of the Act. We hold that determination of a claim under Section 140 of the Act against such an award under Section 173 of the Act.” the Act against for compensation is an award and an appeal lies 8. So, to put it succinctly, when a claim petition is adjudicated by the MACT, determining the rights of the parties thereto, ordinarily such order constitutes an award. In the instant case, the MACT has not adjudicated upon the claim petitions; it has only returned the said petitions on the ground of lack of 11 territorial jurisdiction so that the same are presented to the jurisdictional Tribunal for adjudication. Therefore, going by the observations of the Apex Court and of the Madhya Pradesh High Court, the impugned orders do not constitute “awards” and consequently, the appeals are incompetent.
9. For all the reasons stated above, these appeals fail; however, it is open to the appellants to work out their grievance elsewhere in accordance with law. Sd/- JUDGE UN