Oriental Insurance Co. Ltd. Vs. Veronica ObrIn (Smt.) and ors. - Court Judgment

Excerpt:
- karnataka transparency in public procurements act, 1999 (29 of 2000) section 4: [n. kumar, j] notice inviting tender for supply of billing machines, stationeries and other equipments to electricity supply company held, requisite qualification of having 3 years experience in providing similar service would mean experience of providing similar goods to any electricity supply co. expression similar service is referable to goods invited to be supplied under tender. earlier experience of tuning and maintenance of billing software would not suffice. hence award of contract on basis of aforesaid earlier experience is liable to be quashed. section 4(b): [n. kumar,j] award of contract to a particular person without calling for tender held, the committee constituted was not of experts. they were unable to take a decision. the said committee committed an error in referring the matter to a professor, an expert in the field for which they had no power under the act. it is the procurement entity which has to constitute a three member expert committee to consider the services rendered by the second respondent and then to find out whether he is the only person who has got exclusive control of the said service. that has not been done. after the matter was referred to professor obviously he was not aware of the provisions of this act. he has not certified that the petitioner is the only source from which this service could be procured. the recommendation made by him is very general in nature. it does not satisfy the requirement contemplated under proviso to sub-section (b) of section 4. in the letter addressed by him to the first respondent, he has not declared that goods or services are available from a single source or that the second respondent has exclusive rights in respect of the goods and services. another error committed was without properly understanding the contents of the said letter, the first respondent has proceeded on the assumption that professor is of the view that the second respondent is the only single source from whom the said service could be procured and they have awarded the contract to the second respondent on the basis of the said letter. this award of contract in utter violation of section 4(b) is liable to be quashed. -- section 4(b) :award of contract for spot billing and collection and total revenue management of billing and collection of bescom sub-divisions - compliance to the provisions of section 4 - requirements to be satisfied under, before a contract could be awarded without calling for tender- importance of appointing expert committee - held, during the period of natural calamity or emergency declared by the government for procuring goods or services it is not necessary to follow the procedure prescribed under the act. where the goods or services are available from a single source or where a particular supplier or contractor has exclusive rights in respect of the goods or services or construction work and no reasonable alternatives or substitutes exist. then it is not necessary to follow the procedure prescribed under the act. there is no obligation to procure such services and goods by inviting tenders. but, before this provision could be invoked, there should be a finding by a competent authority that the goods or services are available only from a single source or a particular supplier or a contractor who has exclusive rights in respect of the goods or services. for that purpose the statute provides for constitution of a committee of three experts. on facts held, it is clear that there is total non-application of mind by the first respondent in the constitution of the expert committee, in making reference to an expert and also in not understanding what the expert has stated by way of his opinion. therefore, the first respondent committed a serious illegality in awarding the contract to the second respondent. -- section 9: tender award of contract to second respondent in preference to the petitioner who appears to have all the requisite qualification-challenge to on facts held, the second respondent did not have the three years experience as required under the terms of the bid document. the second respondent did not possess the three years experience in supplying spot billing machines and other hardware items which is the subject matter of the tender in question. the decision of the procurement entity that the second respondent do possess three years qualification in supplying spot billing machines to the first respondent of a period of three years is ex facie illegal and contrary to the material on record. the award of contract to the second respondent in preference to the petitioner who appears to have all the requisite qualification is a clear case of preferring a bidder who does not satisfy the qualification prescribed by the procuring entity. therefore, the award of the contract to the second respondent is illegal and is liable to be quashed. n. venkatachala, j. 1. the award appealed against by the inspector is of the workmen's compensation commissioner made under the workmen's compensation act, 1923 (for short 'the wc act'). the insurer's liability under the said award to pay compensation to respondents 1 to 3, who are the dependents of deceased machale obrin, a driver of a motor vehicle, has arisen because of a policy of insurance issued by it under the motor vehicles act, 1939 (for short 'the mv act'),covering the risk of the driver of that motor vehicle as workman of employer-owner of that motor vehicle, respondent 4. respondents 1 to 3 have made their claim for compensation under the wc act for the death of workman (driver) opting to the forum provided for under the wc act as permitted under section 110-aa of the mv act. such opting disentitled respondents 1 to 3 to make a claim for compensation in the forum provided for under the mv act, in that, section 110-aa forbids the claimants in making the claims for compensation in both forums. consequently, if a claim is made under the mv act, a claim under the wc act becomes unmaintainable. in fact, in a case where a claim for compensation on account of death or bodily injury of a driver, conductor or employee in a motor vehicle is based on a policy of insurance issued respecting such motor vehicle under the mv act and also a policy of insurance covering the third party risk issued under the mv act in respect of another motor vehicle responsible for the accident, it would be advantageous to opt to make a claim for compensation under the mv act, for, the scope of enquiry to be held thereunder and the reliefs which could be given there against several persons would not be restricted or limited. relief could be got there not only against the employer or his insurer, but also against the tort-feasor, his master-the owner of the motor vehicle responsible for the accident and its insurer. such claim if made under the mv act, claims tribunal concerned could grant where permissible, to the claimant compensation higher than that which could be given by the commissioner under the wc act. besides, the claims tribunal, in such a claim, will be able to fix the liability against several persons concerned and their inter se liability. but, if a driver, conductor or employee in a motor vehicle respecting which policy of insurance was taken under the mv act suffers bodily injury or dies and the claim for compensation in that regard is preferred by the driver, conductor or employee or the dependents, as the case may be, under the wc act, the claim has to be restricted to the liability of the employer and the insurer of such employer. however, filing of a claim by the owner of the motor vehicle or his insurer who has to bear the liability for compensation, does not prevent either of them from proceeding against the owner or insurer of driver of the other motor vehicle responsible for the accident, before the claims tribunal under the mv act for obtaining reimbursement of the liability suffered by any of them. if claim for compensation, which could have been made under the wc act, and claim for compensation, which could have been made under the mv act arising from the same motor accident due to collision of two motor vehicles are made before claims tribunal under the mv act, the course, which the claims tribunal could adopt, is to club those claims together, hold a common enquiry and decide upon all matters including the inter se liability for compensation among the persons concerned which may arise for consideration. under any circumstance, if an award is obtained by claimants by filing a claim under the wc act, the amount payable thereunder should be reduced by the amount obtained by such claimants, in a claim made under the mv act, before the claims tribunal, for, such reduction becomes permissible because of the entitlement of the employer and the insurer to obtain reimbursement of the liability for compensation to the claimants from tort-feaser. since how, by whom, against whom and in what manner a claim for compensation under the mv act should be decided depends on a given fact situation, the same cannot admit of enumeration.2. coming to the award under appeal, as thesame has since been made on the basis of a claimmade under the wc act, according to the optionexercised by claimants as provided for in section110-aa of the mv act, the appeal therefrom byan insurer on grounds other than those on whichhe could have defended the claim under section96(2) of the mv act becomes unmaintainable, ashas been held by us in new india assurancecompany limited v. raja naika, 1992(2) kar. l.j.672. 3. hence, we dismiss this appeal, but without prejudice to the appellant - insurer of the insured - employer to obtain reimbursement of their liability under the award in appeal, from such persons who may become liable for such reimbursement, by having recourse to such remedies as may be open to them in law.