National Insurance Company Ltd. Vs. Anindita Debnath (Roy) and ors. - Court Judgment

Excerpt:
- - (i) learned tribunal has failed to exercise its jurisdiction as vested to it under the motor vehicles act, 1988; (ii) the findings in the judgment, are perverse and have badly suffered from non-application of mind; (v) the learned tribunal ought to have considered the various principles laid down by the hon'ble apex court in computing the net loss suffered by a family or even lives of the deceased in a motor accident like the instant case; the tribunals will, nervertheless, continue to act like courts of fist instance in respect of the areas of law for which they have been constituted. the life expectancy of the deceased and the defendants, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the defendants..... r.b. misra, j.1. heard mr. a. lodh, learned counsel for the petitioner, also heard mr. b. banerjee, learned counsel for the respondents.2. the present petition under article 227 of the constitution of india has been preferred by the national insurance company, the petitioner herein, for exercising power of superintendence to set side the order dated 14.8.06 passed by the learned member, motor accident claims tribunal, west tripura, agartala (for short, learned tribunal) in ts (mac) no. 591 of 2004 where by awarding compensation in reference to the application preferred by the claimant-opposite parties under section 166 of the motor vehicles act in context of the death of debi prasad roy which took place in a road traffic accident occurred on 7.3.04 at about 0600 hours near tanti para on.....

Judgment:

R.B. Misra, J.

1. Heard Mr. A. Lodh, learned Counsel for the petitioner, Also heard Mr. B. Banerjee, learned Counsel for the respondents.

2. The present petition under Article 227 of the Constitution of India has been preferred by the National Insurance Company, the petitioner herein, for exercising power of superintendence to set side the order dated 14.8.06 passed by the learned Member, Motor Accident Claims Tribunal, West Tripura, Agartala (for short, learned Tribunal) in TS (MAC) No. 591 of 2004 where by awarding compensation in reference to the application preferred by the claimant-opposite parties under Section 166 of the Motor Vehicles Act in context of the death of Debi Prasad Roy which took place in a road traffic accident occurred on 7.3.04 at about 0600 hours near Tanti Para on Agartala-Airport road by the Commander Jeep hearing No. TR-01-3120.

3. It appears that on the fateful day on 7.3.2004 in the morning deceased Debi Prasad Roy was going towards Agartala from Usha Bazar by riding on the Motor cycle of his younger brother bearing registration No. TR-01-D-5957. On the way near Tanti Para at about 0600 hours a Commander Jeep vehicle bearing registration No. TR 01-3120 coming from opposite direction with high speed, rash and negligently driven had dashed Debi Prasad Roy along with his Motor cycle. Debi Prasad Roy sustained grievous injuries on his person in the accident. Immediately after the accident one Shri Subhajit Bhattacharjee and other local people shifted Debi Prasad Roy to G.B. hospital, Agartala. But on that day at about 1510 hours Debi Prasad Roy succumbed to the injuries. Deceased Debi Prasad Roy was a young man of about 30 years at the time of accident and an enlisted contractor of Central Public Works Department. At the time of accident he used to earn Rs. 25,000/- per month. Accordingly, the claimant-opposite parties have preferred the instant claim petition for compensation. The owner of the offending Jeep bearing No. TR 01-3120 Smt. Gita Rani Shil filed a written statement denying the claim of the opposite parties and the petitioner herein the Insurance Company contested the suit for compensation denying all the averments made in the claim petition.

4. The learned 'Tribunal' framed following two issues:

(i) Whether deceased Debi Prasad Roy sustained injuries in a vehicular accident on 7.3.2004 due to rash and negligent driving of TR-01-3120 and succumbed to his injuries on the same day?

(ii) Whether the petitioners are entitled to get compensation, if so, what should be the quantum of compensation and who shall be held liable for payment of the same?

5. In support of the claim petition the petitioner No. 1 Smt. Anindita Debnath (Roy) and two other witnesses namely, Subhajit Bhattacharjee and Pinku Pal adduced their examination in chief on affidavit as P.W. 1, PW 2 and PW 3 respectively. PW 1 Smt. Anindita Debnath (Roy) during her re-examination in continuation of her examination in chief given on affidavit exhibited the following documents:

(i) Exbt. 1 - Copy of FIR of Airport PS case No. 8/04 (three sheets);

(ii) Exbt. 2- Copy of P.M. examination report of deceased Debi Prasad Roy (two sheets);

(iii) Exbt. 3- Copy of final report (charge sheet) submitted by police officer in Airport PS case No. 8/04;

(iv) Exbt. 4- Copy of birth certificate of the minor petitioner No. 2 – Mahim Chandra Roy;

(v) Exbt. 5- copy of Assessment Order./calculation sheet of Income Tax prepared by Income Tax department (two sheets);

(vi) Exbt. 6- Copy of death certificate of the deceased;

(vii) Exbt. 7- Copy of Admit card of the deceased issued from Central Board of Secondary Education;

(viii) Exbt. 8- Copy of office order dated 6.7.03 issued from the office of Chief Engineer (NEZ) Central Public Works Department (two sheets);

(ix) Exbt. 9- Copy of driving licence of the deceased.

6. After examining the materials on record and analyzing the evidences, the two issues were dealt with and the learned Tribunal has arrived at a finding that the deceased Debi Prasad Roy sustained injuries on the vehicular accident on 7.3.04 due to rash and negligent driving of Commander Jeep bearing No. TR-01 -3120 and as such the issues were decided in favour of the claimants. On the basis of the age disclosed for the deceased, the income as assessed and other parameters, learned Tribunal has ascertained the age and income of the deceased and has applied the multiplier as indicated in the 2nd Schedule to the Motor Vehicles Act has awarded compensation of Rs. 20,47,000/with interest @ 6% per annum from the date of filing the claim petition on 25.11.04 till the date of payment with certain other directions. The said order, however, has not been challenged by way of appeal under Section 173 of the MV Act and against the said impugned order dated 14.8.06, the present petition under Article 227 of the Constitution of India has been preferred.

7. At the outset, this court heard the learned Counsel on the maintainability of the present petition under Article 227 of the Constitution of India. The petitioner Insurance Company has challenged the award in the present petition on the following grounds:

(i) Learned Tribunal has failed to exercise its jurisdiction as vested to it under the Motor Vehicles Act, 1988;

(ii) The findings in the judgment, are perverse and have badly suffered from non-application of mind;

(iii) The judgment of the learned court below has suffered from misconception of law and facts;

(iv) The manner in which the learned Tribunal computed or assessed the income of the deceased is in violation of the established principles of law and the assessment of the learned Tribunal made is disproportionately exorbitant and that too is based on virtually no cogent and acceptable evidence;

(v) The learned Tribunal ought to have considered the various principles laid down by the Hon'ble Apex Court in computing the net loss suffered by a family or even lives of the deceased in a motor accident like the instant case;

(vi) The learned Tribunal ought to have considered the age of attaining majority of the minor and whether after attaining the majority how long his dependency would continue and also the age of mother of the deceased separately for the period of her dependency and the period of dependency of his father, who is aged 70 years.

8. Learned Counsel for the petitioner has submitted that in Sadhana Lodh v. National Insurance Company Ltd. : [2003]1SCR567 , the Supreme Court has not given any blanket direction that no petition under Article 226/227 of the Constitution would be maintainable against the award passed by the learned Tribunal under Motor Vehicles Act. In Sadhana Lodh (supra), the High Court has the power under Article 227 of the constitution to examine as to whether the Tribunal has acted within the parameters of the motor Vehicles Act or not. Learned Counsel for the petitioner further contended that mere on the ground of error in any order of learned Tribunal, the writ petition under Article 227 of the constitution may not be maintainable without anything more in the judgment and award.

9. According to the learned Counsel for the petitioner, in view of the decision of the Constitution bench of the Supreme Court in L. Chandra Kumar v. Union of India : [1997]228ITR725(SC) any order including the one under Motor Vehicles Act could be challenged and entertained under Article 226/227 of the Constitution by the High Court and could also be entertained under Article 32 of the Constitution.

10. For the above purpose, reliance has been placed by the learned Counsel for the petitioner to the paragraphs 79, 80, 81, 90, 93, 94 and 99 of L. Chandra Kumar (supra). for convenience, these paragraphs are extracted below:

79. We also hold that the power vested in the High Courts to exercise judicial superintendence over the decisions of all Courts and Tribunals within their respective jurisdictions is also part of the basic structure of the constitution. This is because a situation where the High Courts are divested of all other judicial functions apart from that of constitutional interpretation, is equally to be avoided.

80. However, it is important to emphasis that though the subordinate judiciary or Tribunals created under ordinary legislations cannot exercise the power of judicial review of legislative action to the exclusion of the High Courts and the Supreme Courts, there is no constitutional prohibition against their performing a supplemental as opposed to a substitution role in this respect. That such a situation is contemplated within the constitutional scheme becomes evident when one analyses Clause (3) of Article 32 of the Constitution which reads as under:

32. Remedies for enforcement of rights conferred by this part-(1)...(2)...(3) without prejudice to the powers conferred on the Supreme Court by Clauses(1)(2), Parliament may be law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under Clause(2).

81. If the power under Article 32 of the Constitution, which has been described as the 'heart' and 'soul' of the constitution, can be additionally conferred upon 'any other court', there is no reason why the same situation cannot subsist in respect of the jurisdiction conferred upon the High Courts under Article 226 of the constitution. So long as the jurisdiction of the High Courts under Articles 226/227 and that of this court under Article 32 is retained, there is no reason why the power to test the validity of legislations against the provisions of the Constitution cannot be conferred upon Administrative Tribunals created under the Act or upon Tribunals created under Article 323 B of the Constitution. It is to be remembered that, apart from the authorization that flows from Articles 323 A and 323 B, both Parliament and the State Ligatures possess legislative competence to effect changes in the original jurisdiction of the Supreme Court and the High Courts. This power is available to Parliament under Entries 77, 78, 79 and 95 of List I and to the State Legislatures under Entry 65 of List II; Entry 46 of List III can also be availed of both by Parliament and the State Legislatures for this purpose.

90. We may first address the issue of exclusion of the power of judicial review of the High Courts. We have already held that in respect of the power of judicial review, the jurisdiction of the High Courts under Article 226/227 cannot be excluded. It has been contended before us that the Tribunals should not be allowed to adjudicate upon matters where the vires of legislations is questioned, and that they should restricted themselves to handling matters where constitutional issues are not raised. We cannot bring ourselves to agree to this proposition as that may result in splitting up proceedings and may cause avoidable delay. If such a view were to be adopted, it should be open for litigants to raise constitutional issue, many of which may be quite frivolous, to directly approach the High Court and thus subvert the jurisdiction of the Tribunals. Moreover, even in these special branches of law, some areas do involve the consideration of constitutional questions on a regular basis ; for instance, in service law matters, a large majority of cases involve an interpretation of Articles 14, 15 and 16 of the Constitution. To held that the Tribunals have no power to handle matters involving constitutional issues would not serve the purpose for which they were Constituted. On the other hand, to hold that all such decisions will be subject to the jurisdiction of the High Courts under Articles 226/227 of the constitution before a Division Bench of the High Court within whose territorial jurisdiction the Tribunal concerned falls will serve two purposes. While saving the power of judicial review of legislative action vested in the High Courts under Article 226/227 of the constitution, it will ensure that frivolous claims are filtered out through the process of adjudication in the Tribunal. The High Court will also have the benefit of a reasoned decision on merits which will be of use to it in finally deciding the matter.

93. Before moving on to other aspects, we may summarise our conclusions of the jurisdictional powers of these Tribunals. The Tribunals are competent to hear matters where the vires of statutory provisions are questioned. However, in discharging this duty, they cannot act as substitutes for the High Courts and the Supreme Court which have, under our constitutional set up, been specifically interested with such an obligation. Their function in this respect is only supplementary and all such decisions of the Tribunals will be subject to scrutiny before a division Bench of the respective High Courts. The Tribunals will consequently also have the power to test the vires of subordinate legislations and rules. However, this power of the Tribunals will be subject to one important exception. The Tribunals shall not entertain any question regarding the vires of their parent statutes following the settled principle that a Tribunal which is a creature of an Act cannot declare that very Act to be unconstitutional. In such cases alone the concerned High Court may be approached directly. All other decisions of these Tribunals, rendered in cases that they are specifically empowered to adjudicate upon by virtue of their parent statutes, will also be subject to scrutiny before a Division Bench of their respective High Court. We may add that the Tribunals will, however, continue to act as the only courts of first instance in respect of the areas of law for which they have been constituted. By this, we mean that it will not be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except, as mentioned, where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal.

94. The directions issued by us in respect of making the decisions of Tribunals amenable to scrutiny before a Division Bench of the respective High Courts will, however, come into effect prospectively i.e. will apply to decisions rendered hereafter. To maintain the sanctity of judicial proceedings, we have invoked the doctrine of prospective over-ruling so as not to disturb the procedure in relation to decisions already rendered.

99. In view of the reasoning adopted by us, we hold that Clause 2(d) of Article 323 A and Clause 3(d) of Article 323 B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Article 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the 'exclusion of jurisdiction' clauses in all other legislations enacted under the aegis of Articles 323 A and 323 B, would, to the same extent be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323 A and Article 323 B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls. The Tribunals will, nervertheless, continue to act like courts of fist instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated.

11. Learned Counsel for the petitioner has also referred and relied upon an another decision of Hon'ble Supreme Court in T.N. State Transport Corporation Ltd. v. S. Rajapriya : AIR2005SC2985 of this judgment is extracted below:

8. The assessment of damages to compensate the dependents is beset with difficulties because from the nature of things, it has to take into account many imponderables e.g. the life expectancy of the deceased and the defendants, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the defendants during that period, the chances that the deceased may not have lived or the defendants may not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better employment or income or might have lost his employment or income together.

9. The manner of arriving at the damages is to ascertain the net income of the deceased available for the support of himself and his dependents, and to deduct therefrom such part of his income as the deceased was accustomed to spend upon himself, as regards both self-maintenance and pleasure, and to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependents. Then that should be capitalized by multiplying it by a figure representing the proper number of years purchase.

12. According to the learned Counsel for the petitioner, this court (learned Single Judge in a writ petition (W.P. (C) No. 113 of 2006 referred under Article 227 of the constitution by the National Insurance Company against the judgment and award has taken a view that the writ petition under Article 227 of the Constitution could be entertained and by an order dated 17.5.06, the entire judgment and award was analysed including the parameters, multiplier and other aspects and the writ petition was allowed modifying the award under Article 227. Learned Counsel for the petitioner has referred and relied upon the observations made in the above judgment and order of this Court (learned Single Judge) which has endeavoured to distinguish the decision of Sadhana Lodh (supra).

13. The relevant paragraphs 3, 4, 6 and 7 of Sadhana Lodh (supra) are extracted as below:

3. Learned Counsel appearing for the appellant urged that in view of the fact that under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') a remedy by way of appeal to the High Court is available to the insurer against an award given by the Tribunal, therefore, the filing of a petition under Article 227 of the Constitution was misconceived and deserved dismissal and the High Court ought not to have entertained and decided the writ petition on merits. We find merit in the submission.

4. It is not disputed that under Section 173 of the act, an insurer has right to file an appeal before the High Court on limited grounds available under Section 149(2) of the Act. However, in a situation where there is a collusion between the claimant and the insured or the insured does not contest the claim and further, if the Tribunal does not implead the insurance company to contest the claim, in such a situation it is open to an insurer to seek permission of the Tribunal to contest the claim on the ground available to the insured or to a person against whom a claim has been made. If permission is granted and the insurer is allowed to contest the claim on merit, in that case, it is open to the insurer to file an appeal against the award of the Tribunal on merits. Thus, in such a situation, the insurer can question the quantum of compensation awarded by the Tribunal.

6. The right of appeal is a statutory right and where the law provides remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Articles 226/227 of the constitution on the premise that the insurer has limited grounds available for challenging the award given by the Tribunal. Section 149(2) of the Act limits the insurer to file an appeal on those enumerated grounds and the appeal being a product of the statute it is not open to an insurer to take any plea other than those provided under Section 140(2) of the Act (see National Insurance Co. Ltd. v. Nicolletta Rohtagi). This being the legal position, the petition filed under Article 227 of the Constitution by the insurer was wholly misconceived. Where a statutory right to file an appeal has been provided for, it is not open to the High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 of the Code of Civil Procedure. Where remedy for filing a revision before the High Court under Section 115 CPC has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution. As a matter of illustration, where a trial court in a civil suit refused to grant temporary injunction and an appeal against refusal to grant injunction has been rejected and a State enactment has barred the remedy of filing revision under Section 115 CPC, in such a situation a writ petition under Article 227 of the Constitution would like and not under Article 226 of the Constitution. Thus, where the State Legislature has barred a remedy of filing a revision petition before the High Court under Section 115 CPC, no petition under Article 226 of the Constitution would lie for the reason that a mere wrong decision without anything more is not enough to attract jurisdiction of the High Court under Article 226 of the Constitution.

7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate court or the tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the constitution to review or reweigh the evidence upon which the inferior court or tribunal purports to have passed the order or to correct errors of law in the decision.

14. Relevant paragraphs 11, 12, 13 of order dated 17.5.06 of this Court (learned Single Judge) passed in W.P. (C) No. 113/2006 as referred and relied upon for and on behalf of the petitioner are given as below:

11. The above proposition of law has set at rest any controversy about maintainability of a petition under Section 226/227 of the Constitution relating to quantum of compensation. But that has not taken away the plenary powers of the writ court to interfere with an award which is a complete perversity or a nullity for infraction of the settled legal principle to be employed in determining the just amount of compensation as contemplated by Section 168 of the Act. In National Insurance Company v. Soma Devi reported in 2003 ACJ 919, a full Bench of High Court of Himachal Pradesh elaborately discussed several; decisions of the Apex Court on the issue and made the following observation in para 12 which reads thus.

12. The aforesaid proposition of law thus sets at rest any controversy, or doubt about the maintainability of any such petition under Articles 226 or 227 of the Constitution and, therefore, the Division Bench judgment of this court in Sumitra Devi, , taking a view contrary to the aforesaid view of the Apex Court, is hereby overruled. The overruling of the judgment in Sumitra Devi, or for that matter reliance placed by us (in doing so) upon the ratio in Sadhana Lodh, : [2003]1SCR567 , does not and cannot mean that, apart from an award based on any question relating to the quantum of compensation not being liable to be challenged by an insurer in a petition filed under Articles 226/227 of the Constitution of India, the doors of this court are always completely shut to a person, including an insurer, in invoking this court's extraordinary jurisdiction under Articles 226/227 of the Constitution where such a person, including an insurer satisfies this court that the award is a complete perversity, or a nullity in the eyes of law, or that either the Tribunal has had no jurisdiction in passing the award, or the award has been passed on grounds and for reason which, on the touchstone of any constitutional or legal provision or even a provision in common law, cannot stand judicial scrutiny. For instance, where an insurer approaches this court by filing a petition under Articles 226/227 of Constitution of India assailing an award of the Tribunal on the ground that, contrary to all principles aware found in the law of Torts or those relating to fixing tortuous liability, the claimant had no cause to prefer any claim at all, or that there was no wrong done by any one, not the least by the insurer respondent, as far as the alleged causing of the alleged injuries or for that matter even the factum of the accident was concerned. For instance, in a case like C.W.P. No. 679 of 2001 (which is one of the cases referred to this Full bench for consideration) where a truck driver while driving a truck died because of a mishap not attributed to any one else, and despite admitted case of the legal heirs of the deceased truck driver that this accident did not occur on account of any rashness or negligence of anyone (because no other vehicle or no other person was involved in the causing of this mishap), the claim petition was nonetheless filed by the legal heirs of the deceased truck driver against the insurer respondent (and the insurer of the truck alone was made the sole respondent in the claim petition), and despite the insurer respondent raising the objection as to the maintainability of the claim petition and the Tribunal having actually framed an issue to that effect, an award was nonetheless passed against the insurer.

12. Thus, Sadhana Lodh (supra) cannot and has not shut all doors to a person including an insurer who has always the liberty to invoke supervisory powers of this court under Article 227 of the Constitution to step in where and award is gross perversity, nullity, without jurisdiction being infraction of the settled, time honoured legal principle. The said High Court made reference to the judgment of the Apex Court in United India Insurance Company Ltd. v. Rejendra Singh reported in : [2000]2SCR264 laying down the principles to be adopted in dealing such a situation particularly regarding the supervisory powers of the High Courts which is profitably quoted below:

For a High Court in India to say that it has no power even to consider the contention that the awards secured are the by-products of stark fraud played on a Tribunal, the plenary power conferred on the High Court by the Constitution may become a mirage and people's faith in the efficacy of the High Courts would corrode. We would have appreciated if the Tribunal or at least the High Court has considered the pleas and found them unsustainable on merits, if they are meritless. But when the courts pre-empted the insurance company by slamming the doors against it, this court has to step in an salvaged the situation.

Thus, the Tribunal refused to open the door to the appellant company and the High Court declined to exercise its writ jurisdiction which is almost plenary for which no statutory constrictions could possibly be imposed. If a party complaining of fraud having been practiced on him as well as on the court by another party resulting in a decree, cannot avail himself of the remedy of review or even the writ jurisdiction of the High Court, what else is the alternative remedy for him? Is he to surrender to the product of the fraud and thereby become a conduit to enrich the imposter unjustly? The learned Single Judge who indicated some other alternative remedy did not unfortunately spell out what is the other remedy which the appellant insurance company could pursue with.

13. It is, thus, clear that where on the face of it, an ward is a perversity due to gross non-observance of the settled legal principle in determining the just amount of compensation, it can be said that the Tribunal has not acted within its parameters calling for interference by the High Court in exercise of its plenary supervisory powers.

15. In reference to above observations made by the learned Single Judge of this court learned Counsel for the petitioner has prayed for setting aside the impugned award of present case in exercise of supervisory power under Article 227 of the Constitution by making appraisal; of evidences, witnesses and materials on the record for the purpose of saying that the learned Tribunal has not applied the parameters correctly and has erroneously passed the award and further prayer has been made to reduce the quantum of compensation indicated in the award.

16. The decision of Sadhana Lodh (supra) was referred and relied upon in subsequent decision of Supreme Court in Bijoy Kumar Dugar v. Bidya Dhar Dutta and Ors. : AIR2006SC1255 . The relevant extract of paragraph 17 is given as below:

17. Thus, in the light of the decision of this court in Sadhana Lodh v. National Insurance Co. Ltd. dealing with the provisions of sections 173 and 149(2) of the Act and the provisions of Articles 226 and 227 of the Constitution and also Section 115 of the Code of Civil Procedure, 1908 this court held that since the insurer has a remedy by filing an appeal before the High Court on the available defences envisaged under the statute, writ petition under Articles 226/227 of the Constitution by an insurer challenging the award of MACT is not maintainable.

17. With profound respect to the verdict and order dated 17.5.06 of the learned Single Judge of this court referred and relied by the petitioner, this court is unable to follow the above judgment wherein this court (learned Single Judge) has reduced the compensation and modified the award as an appellate court in exercise of its supervisory power under Article 227 of the Constitution. The Supreme Court in Sadhana Lodh's case (supra) has very clearly indicated that the petition under Article 226/227 by the insurer challenging the order of the Tribunal is not maintainable when a remedy by filing an appeal under Section 173 of the Motor Vehicles Act was available to the insurer. Article 227 of the Constitution of India indicates the power of superintendence over all courts by the High Court and it does not provide to make a fresh appraisal of the facts, controversial issues, disputed facts, reappraisal of evidences, review or re-weigh the evidences for the purpose of making or substituting another finding on the award or compensation on the ground of illegality and incorrectness of the impugned judgment and award of the learned Tribunal.

18. The Supreme Court in Securities and Exchange Board of India v. Arihant Catsyn Ltd. (2005) 13 SCC 498, paragraph 4 has observed that revisional jurisdiction of High Court could always be exercised where the subordinate court is found to have acted without jurisdiction or in excess of jurisdiction and for the purpose of keeping the subordinate court within bounds when the subordinate court has assumed jurisdiction which it did not have or has failed to exercise jurisdiction which it does have. Since the instance case, keeping in view the grounds and the relief prayed, not falling under any of the enumerated categories, therefore, interference in exercise of revisional jurisdiction under Article 227 is uncalled for.

19. Therefore, without making any comment on the impugned judgment and award of learned tribunal on its merit it is simply indicated that this court is unable to act as an appellate court in exercise of its supervisory power under Article 227. The writ petition under Article 227 of the Constitution of India is not maintainable against the impugned judgment and award dated 14.8.2006 passed by the learned Tribunal, Nothing has been held by the Supreme Court in L. Chandra Kumar (supra) which goes contrary to the decision of Sadhana Lodh (supra) as the later one is a verdict which is directly on the point in issue in reference to Motor Vehicles Act and the said judgment of Sadhana Lodh (supra) has not yet been diluted or overruled in any subsequent decision of Hon'ble Supreme Court. Here, the decision in L. Chandra Kumar (supra) is not applicable in the present context when the petition under Article 227 of the Constitution is proposed to be adjudicated upon. No help could be derived by the learned Counsel for the petitioner from the judgment of L. Chandra Kumar (supra) in the present case.

Accordingly, the revision petition under Article 227 is dismissed. No order as to cost.