Akurati Ranganayakulu Vs. Goli Subba Rao - Court Judgment

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- motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. if insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the legislature and annihilate mandate of the provisions of sections 170 and 149 of the act. the insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. therefore, the joint appeal as filed by the insured and the insurer is not maintainable. section 166: [v. gopala gowda & jawad rahim, jj] claim for compensation accident due to mechanical defect in the vehicle held, it is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under workmens compensation act. the insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of section 149 of the act. the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under workmens compensation act, but also under benevolent provisions under section 166 and 167 of the m.v. act. the right of driver to seek compensation is not restricted only to the workmens compensation act, it has been enlarged to enable such person to seek just compensation (sections 166 and 168), conferring upon him the right of election engrafted under section 167 of the act to choose either of the two forum. the only defence which the insurer could take is limit of its liability as enumerated under section 147 of the act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the tribunal which crystallizes into enforceable right against both. in the instant case, the claimant/driver has exercised right of election under section 167 of the act to seek compensation under section 166 of the act resulting in award passed by the tribunal. therefore, the insured and the insurer have no escape but to discharge the said award as directed. undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. the owner is therefore, tortfeasor. section 168: [v. gopala gowda & jawad rahim, jj] insurers limit of liability - held, it is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. is for the insurance company to show that the insurance policy was a statutory policy and not a contractual policy to restrict its liability. that issue was neither raised before the tribunal nor is raised in this appeal requiring decision. thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under section 149 (1) of the act. where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the act, instead of seeking compensation under the workmens compensation act. on facts, held, the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. the settled principles governing determination of compensation has been given a go-bye. compensation of rs.4,15,150/- awarded by the tribunal was enhanced to rs.8,20,000/-. - we think that it would be much better if, in cases of appeal under section 250, notice were given to the accused as he is the party prejudiced if the appeal is allowed and the order for compensatiuu rescinded. : i feel no doubt that even though failure to give notice may not render the proceedings of the court illegal, it would certainly affect their propriety. the order, therefore, is obviously bad and is liable to be set aside, and we accordingly do so.subba rao, c.j.1. this is a revision against the judgment of the sub-divisional magistrate, narasaraopet, setting aside the order made by the sub-magfetrate, chirala, directing the complainant to pay compensation of rs. 50/- to the accused under section 250(2), cr.pc or, to suffer simple imprisonment for 30 days.2. the facts lie in a small compass. the respondent filed a complaint against the petitioner in the court of the sub-magistrate under section 355, ipc alleging that he beat him with the shoe of his right leg on his left cheek near the market. the sub-magistrate found on the evidence that the complaint was false and vexatious and, on that finding, discharged the accused under section 250(2), cr.pc he also directed the complainant to pay compensation of rs. 50/- to the accused under section 250(2), cr.pc or to suffer sample imprisonment for thirty days in default.the complainant filed an appeal against the order directing him to pay compensation to the sub-divisional magistrate, narasaraopet, the sub-divisional magistrate, without giving notice either to the state or to the petitioner, reconsidered the entire evidence and came to the conclusion that there was nothing to show 'that the complaint was false and vexatious. on 'that finding, he allowed the appeal and set aside the order directing payment of compensation. the accused has preferred the above revision against that order.3. learned counsel, mr. rama rao, contends that no appeal lay against the order of the sub-magistrate directing payment of compensation to the sub-divisional magistrate. the question raised falls to be considered on a true construebibn of the provisions of sections 250 and 407(1), cr.pc the material provisions of the said sections are as follows:section 250 : (3) a complainant or informant who has been ordered under sub-s. 2 by a magistrate of the second or third class to pay compensation or has been so ordered by any other magistrate to pay compensation exceeding fifty rupees may appeal from the order in so far as the order relates to the payment of the compensation, as if such complainant or informant had been convicted on a trial held by such magistrate.section 407: 1, any person convicted on a trial held by any magistrate of the second or third class or any person sentenced under section 349 or in respect of whom an order has been made or a sentence has been passed under section 380 by a sub-divisional magistrate of the second class may appeal to the district magistrate.2. the district magistrate may direct that any appeal under this section, or any class of such appeals shall be heard by any magistrate of the first class subordinate to him and empowered by the state government to hear such appeals, and thereupon such appeal or class of appeals may be presented to such subordinate magistrate, or, if already presented to the district magistrate, may be transferred to such subordinate magistrate. the district magistrate may withdraw from such magistrate any appeal or class of appeals so presented or transferred.4. under section 407, cr.pc a person convicted on a trial by any magistrate of the second or the third class may appeal to the district magistrate. under sub-section (2), such an appeal can be presented to a magistrate of the first class subordinate to the district magistrate, if the district magistrate directs that such an appeal may be heard by him and the state government empowered him to do so. it is not disputed that the district magistrate directed the sub-divisional magistrate to hear appeals against convictions made by any magistrate of the second or third class and the state government also empowers him to do so.section 250(3) confers a right of appeal against the order of a magistrate directing compensation to be paid to a complainant as if such a complainant had been convicted on a trial held by such a magistrate. if the sub-sections of section 250 and section 407 of the criminal procedure code are read together, as they should be, it is manifest that the order directing payment of compensation by a second class magistrate would be deemed to be conviction on a trial held by such magistrate and, therefore an appeal would lie against that order to the magistrate under section 402(1), cr.pcsection 407 (1) and (2) prescribes the forum of an appeal against convictions by any magistrate of the second or the third class. ordinarily, the appellate forum in such cases is the court of the district magistrate. but, if the conditions laid down in sub-section (2) are complied with, appeals can be presented against such convictions to a magistrate of the first class subordinate to the district magistrate, who is empowered to entertain appeals under that subsection.section 250(3) introduces a fiction and says that an appeal against an order of compensation will lie as if the complainant had been convicted on a trial held by such a magistrate. there is no reason to confine the scope of the fiction to sub-section (1) of section 407. it does not say that an appeal lies under section 407 (1) of the criminal procedure code. if so, it follows that an appeal lies against such an order to a court to which an appeal against conviction by a magistrate imposing an order of compensation lies.an appeal against the conviction by such a magistrate can be presented to a sub-divisional magistrate under section 407(2), cr.pc and, therefore, an appeal against the order of compensation should be likewise presented to that court. there cannot be, and it is not suggested that there is, any principle on the basis of which the legislature thought fit that the appeal should be heard only ay a district magistrate and not by a first class magistrate subordinate to him.if an appeal against conviction by a second class magistrate would be heard by a first class magistrate subordinate to the district magistrate, we do not see any reason why appeals against orders of compensation should be heard only by a district magistrate. such orders are equated to those of convictions for the purpose of appeals. therefore, both on principle and on the express terms of the relevant sections, we hold that an appeal can be presented to a sub-divisional magistrate against an order of compensation made by a sub-magistrate in cases where the conditions laid down in sub-section (2) of section 407, cr.pc are complied with.5. a contrary view is sought to be sustained on the decision of horwill t. in d. k, reddy in re ilr (1942) mad 587 : a.i.r. 1942 mad 181 (a). the learned judge held that, where a sub-magistrate takes summary action, for contempt of court and imposes a sentence under section 480, criminal procedure code, an appeal against that sentence lies only under section 486(1) of the code, to the district magistrate and that the district magistrate has no right to direct such an appeal to be heard by a magistrate of the first class subordinate to him.that decision turned upon the provisions of section 486(1) which says that any person sentenced by any court under section 480.. may ...appeal to the court to which decrees or orders made in such court are ordinarily appealable. horwill j. laid emphasis on the word ordinarily and came to the conclusion that an appeal against such an order ordinarily lay to the district magistrate. that judgment, therefore, turned upon the express provisions of section 480 of the code. it is not necessary to express our opinion in this case on the correctness of that decision.6. again horwill j. in rathnasami pillai v. rajaratnam pillai ilr (1943) mad 303 : a.i.r. 1943 mad 50 (b), held that the district magistrate has no power to transfer an appeal filed against an order made by a second magistrate making or refusing to make a complaint under section 476(1), cr.pc in respect of an offence committed before him to a sub-divisional magistrate. this judgment turned upon section 476-b of the code which reads:any person on whose application any civil, revenue or criminal court has refused to make a complaint under section 476 or section 476-a or against whom such a complaint has been made, may appeal to the court to which such former court is subordinate within the meaning of section 195(3)....section 195(3) says:for the purposes of this section, a court shall be deemed to be subordinate to the court to which appeals ordinarily lie from the appealable decrees or sentences of such former court.' an order under section 476, cr.pc is not deemed to be a conviction and the combined effect of section 476-b and section 195(3) of the code is that an appeal lies against the said order to a court which ordinarily entertains appeals from a sentence of such a court. though the appellate forum is indicated, the right of appeal is conferred under section 476-b and not under section 407.the appellate tribunal also is indicated by that section to be the tribunal to which appeals ordinarily lie. for the above two reasons, the learned judge held that section 407(2) was not attracted dy reason of the provisions of section 476-b, cr. p, c. that judgment also, therefore, turned upon the express provisions of section 476-b read with section 195(3) and has no relevance to the present case. for the aforesaid reasons, we hold that an appeal lay from the order directing payment of compensation made by the sub-magistrate to the sub-divisional magistrate of narasaraopet.7. the next question is whether the order of the sub-divisional magistrate setting aside that of the sub-magistrate without giving notice to the state and the petitioner is sustainable. under section 250(3) of the criminal procedure code, a complainant, who has been ordered to pay compensation exceeding rs. 50/-, may appeal from the order as if such a complainant has been convicted on a trial held by the magistrate.it has been held that the principle of giving compensation is to recompense by way of damages a party who has been veraciously dragged before the criminal court. for the purpose of appeal, his position is equated to that of an accused. such a complainant, who must be deemed to be an accused, can prefer an appeal against an order directing payment of compensation under section 407, cr.pc section 422, which governs the procedure pertaining to the disposal of such an appeal, says that the appellate court shall cause a notice to be given to the appellant or his pleader and to such officer as the state government may appoint in this behalf of the time and place at which such appeal would be heard.rule 240 of the criminal rules of practice designates the officers to whom notice shall be given under section 422, cr.pc there is a statutory obligation under section 422 on the part of the appellate court to give notice to the appellant or his pleader and to such officer as the state government may appoint in this behalf. there is no such obligation to give notice to the complainant in whose favour an order for compensation was made. but there is no statutory prohibition against such a notice being given to the complainant.the principles of natural justice demand that a party, who is affected by an order-should have an audience before it is vacated to his prejudice. this is embodied in the rule audi alteram partem. deviation from the aforesaid principle may not affect the legality of the order dut may touch its propriety. the high court exercising revisional jurisdiction under section 435, cr.pc has to satisfy itself as to the correctness, legality or propriety of an order passed by an inferior court. the high court, therefore, can set aside an order of a magistrate if he makes it not only contrary to statutory provisions but also in violation of the principles of natural justice.8. the above view has the support of decided cases cited at the bar. a division bench of the madras high court in emperor v. palaniappavelan, ilr 29 mad 187 (c), held that an order by a magistrate directing payment of compensation to the accused ought not to be set aside on appeal without notice to the accused. that case was a converse one.. the accused was awarded compensation by the magistrate. in appeal preferred by the complainant, that order was reversed by the sessions judge without giving notice either to the accused or the public prosecutor. while pointing out that there was no express provision-directing that notice should be given to the accused, the learned judges observed:but on the principle audi alteram partem the accused should have notice of the appeal in order that they may have an opportunity of supporting the order passed in their favour.9. where no notice was given to an accused in an appeal under section 250, cr.pc another division bench of the madras high court held in nagireddi v. basappa, ilr 33 mad 89 (d), that it is not imperative that notice should be given to the accused. at the same time, the learned judges observed:we think that it would be much better if, in cases of appeal under section 250, notice were given to the accused as he is the party prejudiced if the appeal is allowed and the order for compensatiuu rescinded.notwithstanding the said observations, as there was no illegality in the exercise of the discretion, the learned judges did not interfere with the order of the subordinate court.10. a fairly exhaustive treatment of the subject is found in the judgment delivered by another division bench of the same high court in venkatarama aiyar v. krishna aiyar ilr 38 mad 1091 : air 1915 mad 940 (e). there, the sub-divisional magistrate set aside the award of compensation to the accused by a bench of magistrates without giving notice to the accused. spencer j. after referring to the decision in nagi reddi v. basappa (d) (supra) and guruswami naicken v. tirumurthi chetty 27 mad lj 629 : a.i.r. 1915 mad 236 (2)(f), observes at p. 1093 (of ilr) : at p. 941 of a.i.r.:in the former case the court declined to interfere in revision on the ground that there was no illegality and i consider that i am i bound by that decision, although i am aware that in respect of orders passed under other sections of the code which do not contain a direction for notice to be given, courts have sometimes interfered in revision with orders that are merely improper but not illegal for want of notice, following the general rule that an order should not be made to a person's prejudice without giving him an opportunity of being heard.11. seshagiri ayyar j. says much to the same effect at p. 1094 (of ilr) : at p. 941 of a.i.r.:i feel no doubt that even though failure to give notice may not render the proceedings of the court illegal, it would certainly affect their propriety.elaborating the point further, the learned judge says that it would be improper to deprive a man of what has been awarded to him without giving him an opportunity of supporting the decision in his favour.12. adverting to the power of the high court, to interfere in a case of such impropriety under section 435, cr.pc the learned judge proceeds to state at p. 1094 (of ilr) : at p. 941 of a.i.r., thus:this language has been deliberately used to enable the higher authorities to see that no violation of natural justice takes place and that no order to his prejudice is passed behind the back of a person who is interested in upholding it.we respectfully agree with the observations of the learned judges.12a) so too, horwill j., held in ranga konar v. pakkiri vatachi a.i.r. 1943 mad 565 (g), that, although it was not necessary under section 422 to give notice to a complainant even though the complainant was awarded compensation, it was a salutary practice to do-so because the crown might not choose to oppose the appeal. in that case, the learned judge did not interfere in revision having regard to the other circumstances.13. the law on the subject may, therefore, be stated thus. there is a statutory duty enjoined on the appellate court to give notice to the appellant or his pleader and to such officer as the state government may appoint in this behalf. disposal of an appeal without giving such notice is illegal. the principles of natural justice demand issue of a similar notice to the petitioner in whose favour there is an order directing payment of compensation for no court should make an order to the prejudice of another without hearing him.the order ignoring the said principles of natural justice, though not illegal, is improper. the high court, in the exercise of its discretion, can set aside the orders of the appellate court in proper cases not only on the ground of illegality but also for the reason of impropriety.14. in the instant case, the order of the sub-divisional magistrate is vitiated not only by illegality but also by impropriety. he set aside the order of the sub-magistrate without giving notice to the officer appointed by the state government which is illegal and without giving notice to the accused which is improper. the order, therefore, is obviously bad and is liable to be set aside, and we accordingly do so.