Judgment:
Prabuddha Sankar Banerjee, J.
1. This revisional application is one under Article 227 of the Constitution and is directed against judgment and award dated 7.7.2003 passed by learned Judge, Motor Accidents Claims Tribunal, Alipur in connection with M.A.C. Case No. 81 of 2001.
2. The said case was one under Section 163-A of the Motor Vehicles Act brought by the present opposite party against the present petitioner.
3. The fact leading to filing of the said M.A.C. case may be summed up thus:
(i) That the present opposite party met with a motor vehicle accident on 10.7.2000 at about 10.15 hours in front of pillar No. 23 over Howrah Bridge. At the relevant time the victim was aged about 33 years and was earning Rs. 1,330. He was a passenger of Calcutta State Transport Corporation (in short 'C.S.T.C.') bus No. WB 01-1033. As a result of the said accident the present opposite party sustained severe injuries and was treated medically. It is the case of the opposite party that the said accident took place when driver of the said bus tried to overtake another vehicle. The opposite party has become a permanently disabled person.
(ii) By filing the said case the petitioner claimed Rs. 2,00,000 as compensation.
(iii) The C.S.T.C. took the specific plea that the court had no jurisdiction to entertain the application. The present petitioner also took the specific plea that the vehicle involved did not belong to C.S.T.C. and as such, the C.S.T.C. can never be the owner of the vehicle in question.
(iv) The C.S.T.C. prayed for dismissal of the said case.
(v) The learned trial Judge on the basis of evidence and materials on record allowed the application and directed the present petitioner to pay a sum of Rs. 91,200 as compensation. The learned Judge directed further that the amount is to be paid within three months from the date of that order by accounts payee cheque failing which the award shall carry interest at the rate of 7.5 per cent per annum.
4. Being aggrieved by the said order of the learned Judge, M.A.C. Tribunal, the present petitioner preferred this revisional application under Article 227 of the Constitution.
5. Mr. Milan Bhattacharyya, learned senior counsel for the present petitioner challenged the order mainly on the following grounds:
(i) That the court had no jurisdiction to entertain the application.
(ii) That the court ignored the fact that fraud was practised upon the court in getting the award.
6. In support of his contention Mr. M. Bhattacharyya relied upon the evidence of the claimant and on the basis of the same he submitted that the court ignored the fact that the petitioner was a resident of Rishra which is outside the jurisdiction of Alipur court.
7. Mr. Bhattacharyya further contended that in his evidence the petitioner admitted that previously he was residing at a place which was under the jurisdiction of Alipur court but when the accident took place, he was residing at Rishra. At the same time, Mr. Bhattacharyya contended that evidence of the witness, namely, PW 2 and PW 1 clearly established the case of the present petitioner that the court had no jurisdiction in entertaining the application. He drew the attention of the court to the evidence of PW 2 wherein he admitted that the petitioner was staying in his house since 1999 and stayed there for about 2 years. In his cross-examination he admitted that the tax receipt filed by him relates to house No. 101, Sashi Bhusan Banerjee Road. The said statement was pointed out by Mr. Bhattacharyya as the claimant in his application stated that he was residing at 70/2, Sashi Bhusan Banerjee Road, Barisha. Mr. Bhattacharyya drew attention of the court to the evidence of PW 1, i.e., claimant wherein he stated that on 10.7.2000 he was going to the office from his house at Rishra. The said witness admitted that his voter identity card and ration card will show that he was staying at Rishra.
8. Mr. Bhattacharyya in course of his argument challenged the award on the ground that fraud was practised upon the court below in getting the award. It was the further contention of Mr. Bhattacharyya that in subordinate courts rackets play their role in getting appropriate orders prevailing over the court by practising fraud and this is a clear example how fraud was practised upon the court. The said plea was taken by Mr. Bhattacharyya as the present petitioner took the specific plea in the written statement that the vehicle in question did not belong to C.S.T.C. He relied upon the Annexure P2 which is at page 21 and supplementary affidavit which was submitted as per direction of the court. On the basis of the same, Mr. Bhattacharyya submitted that number of the vehicle which has been mentioned is a three-wheeler and is not a C.S.T.C. bus. In support of his contention he relied upon the Annexure along with supplementary affidavit.
9. The said pleas were strongly opposed by Mr. Krishanu Banik, learned Counsel for the opposite party, who challenged the maintainability of the instant revisional application. It was the contention of Mr. Banik that the revisional application under Article 227 of the Constitution is not maintainable as the Motor Vehicles Act clearly provides that appeal lies under Section 173 of the said Act against any award passed by a Tribunal. As the law clearly provides that there is specific provision for appeal, the court of revision under Article 227 will not interfere with any award passed on the basis of evidence and materials which were placed before the court below. It was the further contention of Mr. Banik that the documents, which were annexed along with supplementary affidavit, cannot be considered by the court as those were not placed before the court below.
10. It is seen from the copy of the written statement filed before the Tribunal that the present petitioner challenged the jurisdiction of the court as well as involvement of the vehicle in question. The present petitioner clearly stated that C.S.T.C. is not the owner of the vehicle in question.
11. The order impugned also clearly provides that the said plea was raised before the court below but the same was decided in a cryptic manner.
12. It is apparent on the basis of supplementary affidavit that the number of the vehicle which has been mentioned in the claim application is a three-wheeler (auto). However, the claimant took the specific plea that it was a C.S.T.C. bus.
13. Whether it is a bus or an auto-rickshaw cannot be considered by the court in this revisional application as the same is required to be ascertained on the basis of the evidence.
14. The question arises whether the court can interfere with the said findings of the learned Tribunal in an application under Article 227 of the Constitution.
15. Mr. Banik relied upon the following cases:
(i) Sadhana Lodh v. National Insurance Co. Ltd. : [2003]1SCR567 ;
(ii) Bijoy Kumar Dugar v. Bidyadhar Dutta : AIR2006SC1255 ;
(iii) United India Insurance Co. Ltd. v. Motor Accidents Claims Tribunal : AIR2003All245 ;
(iv) New India Assurance Co. Ltd. v. Rafeeka Sultan : 2000(3)MPLJ561 ; and
(v) Oriental Insurance Co. Ltd. v. Raj Kaur I(2001) ACC 531.
16. At the same time, Mr. Banik relied upon the judgment passed by the learned single Judge of this Court in connection with C.O. No. 2194 of 2005.
17. To meet this point Mr. M. Bhattacharyya, learned Counsel for the petitioner drew the attention of the court to the order passed by the Hon'ble single Judge of this Court in connection with CO. No. 1471 of 2003 wherein the learned single Judge (G.C. Gupta, J.) came to the conclusion that the litigant under Article 227 of the Constitution has the right to approach the court even if there is provision for appeal.
18. It is clear from the copy of the order passed by the Hon'ble Mr. Justice Subhro Kamal Mukherjee in connection with the above-mentioned civil revision case, the Hon'ble single Judge came to the conclusion that revision under Article 227 is not maintainable as there is clear provision of appeal under Section 173 of the Motor Vehicles Act against the order/award passed by the Tribunal.
19. However, opposite view has been taken by Hon'ble Mr. Justice G.C. Gupta in the other CO.
20. It is to be mentioned here that both the Hon'ble Judges did not discuss the position of law in this regard on the basis of interpretation of statute by Apex Court and other Hon'ble courts.
21. In the case of Sadhana Lodh v. National Insurance Co. Ltd. : [2003]1SCR567 , the Apex Court came to the conclusion that there was error on the part of the High Court in entertaining the application under Article 227 of the Constitution and set aside the order passed by Hon'ble High Court.
22. In the case of Bijoy Kumar Dugar v. Bidyadhar Dutta : AIR2006SC1255 , Hon'ble Apex Court came to the conclusion that right of appeal is a statutory right to the parties and where the law provides a remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing writ petition under Article 226/227 of the Constitution on the premise that insurer has limited grounds available for challenging the award passed by M.A.C. Tribunal. The same view was taken by the Division Bench of Allahabad High Court in the case of United India Insurance Co. Ltd. v. Motor Accidents Claims Tribunal : AIR2003All245 . Rajasthan High Court in the case of Ashok Kumar Gour v. Motor Accidents Claims Tribunal Kota (sic), also took the same view.
23. The Special Bench of Madhya Pradesh High Court in the case of New India Assurance Co. Ltd. v. Rafeeka Sultan : 2000(3)MPLJ561 , also came to the conclusion that the insurance company cannot challenge the quantum of compensation in a revision under Section 115 of the Civil Procedure Code or in an application under Article 227 of the Constitution.
24. In the case of Oriental Insurance Co. Ltd. v. Raj Kaur I (2001) ACC 531, the High Court of Punjab & Haryana came to the conclusion that as there is clear provision of appeal under Section 173, the Hon'ble court by invoking its supervisory power under Article 227 of the Constitution cannot re-appreciate the evidence taken before the Tribunal.
25. However, Mr. Milan Bhattacharyya, learned Counsel for the present petitioner opposed those pleas on the ground that supervisory power of the High Court has not been curtailed under Article 227 of the Constitution though there is provision for appeal under Section 173 of the Motor Vehicles Act.
26. He relied upon the case of Maneck Kastodji Surjarji v. Saiafazli Nawabali Mirza : AIR1976SC2446 . He relied mainly upon para 6 of the said decision.
27. In the said decision the Hon'ble court came to the conclusion 'it is true that this principle is not rigid and inflexible and there can be extraordinary circumstances where despite existence of a alternative legal remedy, the High Court may interfere in favour of an applicant but this was certainly not one of such extraordinary cases. It is indeed difficult to see how the learned Judge could entertain a special civil application against a decree passed by a subordinate court when the procedural law allows an appeal against it and that appeal lies to the High Court itself. It must be realised that jurisdiction under Article 227 of the Constitution is an extraordinary jurisdiction which is to be exercised sparingly and in appropriate cases and it is not to be exercised as if it were an appellate jurisdiction or as if it gave unfettered and unrestricted power to the High Court to do whatever it liked'.
28. Mr. Bhattacharyya also relied upon the case of Dwarka Prosad Agarwala v. N.B.D.S. : AIR2003SC2686 , the relevant para being 37.
29. Mr. Bhattacharyya also relied upon the case of Ashok Leyland Ltd. v. State of Tamil Nadu AIR 2004 SC 2836, para 116.
30. I have gone through the said two reported cases specially with respect to para as referred by Mr. Bhattacharyya.
31. On the basis of the cases as referred by the parties and on the basis of materials on record, it is clear that the pleas as raised by Mr. Bhattacharyya is purely on the basis of appreciation of evidence. It is to be mentioned here that documents which were relied upon by Mr. Bhattacharyya were filed before this Court for the first time on the basis of supplementary affidavit and those were not filed before the court below.
32. As such, this Court at this stage cannot go through the correctness of the said documents.
33. Lastly, it was contended on behalf of present petitioner that if it is found that revisional application is not maintainable, the court should give liberty to the present petitioner to file appeal under Section 173 of the Motor Vehicles Act and this submission was made as the plea of fraud was taken by Mr. Bhattacharyya regarding the involvement of the vehicle in question.
34. In the case of Sadhana Lodh v. National Insurance Co. Ltd. : [2003]1SCR567 , Hon'ble Supreme Court came to the conclusion that the High Court should not invoke its power under Article 227 of the Constitution in interfering with the order passed by the Tribunal when remedy under Section 173 of Motor Vehicles Act has been provided.
35. However, in the said judgment, the Hon'ble Supreme Court gave liberty to the respondent to approach before the appellate forum if the same is permissible under the law.
36. Liberty is with the present petitioner to approach the appellate forum under Section 173 of Motor Vehicles Act, if the same is permitted by the appellate court.
37. As such, I do not find any merit in the instant revisional application being not maintainable.
38. As such, the instant revisional application is dismissed but without any cost.
39. Under xerox certified copy of this order be given to the parties within 7 days from the date of this order on proper application.