Judgment:
P.K. Misra, J.
1. In this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') at the instance of the insurance company, the award passed by the Second Motor Accidents Claims Tribunal, Cuttack, is being challenged.
2. Claimant-respondent No. 1 filed Misc. Case No. 211 of 1992 claiming compensation on account of bodily injuries sustained by him. It was alleged by him that while he was moving on the road on 20.12.1991 near Tarapur Bazar, an Ambassador car bearing registration No. ORP 2280 came from Paradeep side at a high speed and dashed against him as a result of which he sustained injuries all over his body. Initially he was treated at Raghu-nathpur P.H.C. and thereafter in the S.C.B. Medical College & Hospital at Cuttack.
The owner of the vehicle was set ex parte, but the insurance company arrayed as the opposite party No. 2 in the claim application itself filed written statement denying the allegations made in the claim petition.
3. The Tribunal on consideration of the materials on record found that the accident occurred due to negligence of the driver of the car and the claimant had sustained injuries in the said accident. Referring to the various documents and the evidence of the doctor, the Tribunal awarded a sum of Rs. 40,000 with 9 per cent interest from the date of application as compensation. It was directed that a sum of Rs. 30,000 should be kept in fixed deposit for six years and the balance amount was to be paid along with interest to the claimant. The Tribunal further directed that since the vehicle had been insured, the amount should be paid by the insurance company.
4. The owner has not filed any appeal against the award obviously because the liability has been fastened on the insurance company. However, the insurance company has filed the present appeal. In the appeal, all the grounds raised relate to the merit of the claim case. In other words, the appellant has challenged the finding regarding negligent driving and has also contended that the compensation payable is on the higher side as there are serious discrepancies in the evidence relating to the nature of injuries sustained by the claimant-applicant.
5. The learned Counsel appearing for claimant-respondent No. 1 has cited the decision of the Supreme Court in Shankarayya v. United India Insurance Co. Ltd., 1998 ACJ 513 (SC) and has contended that the appeal at the instance of the insurance company challenging the award on merit is not maintainable.
6. In the Supreme Court decision in Shankarayya's case, 1998 ACJ 513 (SC), it appears that the owner had remained ex parte. The insurance company had contested the case before the Tribunal on merit and thereafter had filed the appeal before the High Court challenging the award on merit. The High Court reduced the award on the basis of the appeal filed by the insurance company, though no independent appeal had been filed by the owner. In appeal against such decision of the High Court, the Supreme Court has categorically laid down that unless the insurance company is expressly permitted to contest the proceeding on merit, keeping in view the provision of Section 170 of the Act the insurance company has no right to contest the case on merit and further it has no right to file the appeal challenging the award on merit. In other words, where the insurance company is not permitted to contest the proceeding on merit keeping in view the provision contained in Section 170, its appeal has to be confined to the defences which are available to the insurance company and the award cannot be challenged on merits. A perusal of the order-sheet of the Tribunal indicates that though the owner had remained ex parte and the insurance company which had been impleaded at the inception had contested the proceedings on merit, no application in terms of Section 170 of the Act had been filed, nor any express order indicating reasons had been passed permitting the insurance company to contest the proceedings on merit. In such circumstances and in view of the clear decision of the Supreme Court, there is hardly any scope to entertain the appeal in the present case as all the grounds raised by the appellant pertain to merit of the award.
7. The learned Counsel for the appellant has, however, submitted that keeping in view the earlier Full Bench decision of this Court in National Insurance Co. Ltd. v. Magikhia Das, 1976 ACJ 239 (Orissa) and other decisions and particularly in view of the fact that the owner has been set ex parte and the insurance company had not only been impleaded as a party, but was also allowed to contest the case, the appeal at the instance of the insurance company is sustainable. He has further submitted that even assuming that the appeal is not maintainable, the decision of the Supreme Court reported in Shankarayya's case, 1998 ACJ 513 (SC), should not be given retrospective effect and keeping in view the practice followed by the Tribunals in Orissa following the various decisions of this Court where insurance company was being allowed to contest on merit in cases where the owner was set ex parte, the principle decided in the Supreme Court case (supra) should not be applied to the cases which have already been decided by applying the doctrine of prospective overruling.
8. The submission of the learned Counsel for the appellant that the doctrine of prospective overruling should be allowed and the decision of the Supreme Court should not be given retrospective effect as the insurance companies have been acting on the basis of the earlier decisions of this Court cannot be accepted. It is well-known that decision of a court interpreting a particular provision is taken to be operative from the very inception and not from the date of the decision unless such a decision is expressly given a prospective effect. It is further well-known that the doctrine of prospective overruling which has been applied by the Supreme Court of India on a few occasions can be applied only by the Supreme Court and not by the High Court.
In the decision in L.C. Golak Nath v. State of Punjab, AIR 1967 SC 1643, the doctrine of prospective overruling was applied for the first time by the Supreme Court. While applying such doctrine, it was observed in the said decision:
(51) This court for the first time has been called upon to apply the doctrine evolved in a different country under different circumstances, we would like to move verily in the beginning. We would lay down the following propositions:
(1) The doctrine of prospective overruling can be invoked only in matters arising under our Constitution;
(2) it can be applied only by the highest court of the country, i.e., the Supreme Court as it has the constitutional jurisdiction to declare law binding on all the courts in India;
(3) the scope of the retrospective operation of the law declared by the Supreme Court superseding its 'earlier decisions' is left to its discretion to be moulded in accordance with the justice of the cause or matter before it.
Subsequently, though the Supreme Court itself modified the first proposition and had extended the doctrine of prospective overruling to the interpretation of ordinary statutes as would be evident from the decisions in Waman Rao v. Union of India, AIR 1981 SC 271 and Atam Prakash v. State of Haryana, AIR 1986 SC 859, it has never veered from the second proposition. From the aforesaid decisions, it is clear that it is for the Supreme Court to indicate as to whether its decision will be applicable only to future cases by applying the doctrine of prospective overruling. As observed in the decision in L.C. Golak Nath's case, AIR 1967 SC 1643, such doctrine of prospective overruling can be applied only by the highest court of the country, i.e., the Supreme Court. It is thus clear that unless it is so indicated by the Supreme Court in a particular decision that its decision will be prospective in operation, it is not open to other courts including High Courts to hold that the decision of the Supreme Court in a particular case will be prospective in its application by applying the doctrine of prospective overruling. Moreover, the decision of the Supreme Court in Shankarayya's case, 1998 ACJ 513 (SC), does not purport to overrule any earlier decision of the Supreme Court, though inevitably it has the effect of impliedly overruling the contrary decisions of various High Courts, and in such a situation, possibly the question of applying the doctrine of prospective overruling may not arise. Be that as it may, as already indicated, since the Supreme Court has not declared that the decision will be prospective in its operation, the contention to the effect that the ratio of the Supreme Court decision should not be applied to cases already decided by the Tribunals prior to the date of the decision of the Supreme Court, cannot be countenanced.
9. I accordingly dismiss the appeal as the grounds raised in the appeal are not available to be urged by the insurance company, appellant. There will be no order as to costs.
10. During the pendency of the appeal, a sum of Rs. 20,000 has been deposited in this Court by the insurance company which has been kept in fixed deposit by order dated 27.4.1998. The claimant-respondent was permitted to withdraw a sum of Rs.. 10,000, but as it appears, no amount has been disbursed. The deposited amount of Rs. 20,000 along with accrued interest shall be paid to the claimant-respondent No. 1. Besides, insurance company is now required to deposit the balance amount of Rs. 20,000 with interest at the rate of 9 per cent from the date of application till date of deposit. Furthermore, the insurance company is also required to deposit interest at the rate of 9 per cent on the sum of Rs. 20,000 from the date of application till the date on which such deposit was made in the High Court. Such further amount along with the interest as directed above shall be deposited in the Tribunal and the Tribunal shall disburse the said amount to claimant-respondent No. 1. Such balance principal amount of Rs. 20,000 along with interest to be deposited in the Tribunal shall be kept in a fixed deposit in the name of the claimant-respondent for a period of five years with permission for withdrawal of quarterly interest. The amount deposited in the High Court along with accrued interest shall be paid to the claimant-respondent No. 1 by way of account-payee cheque or pay order, as the case may be. The amount as directed to be paid by this decision shall be deposited before the Tribunal within three months from today.