Malua Alias Mulgiri Vs. Bhagwan Singh and ors. - Court Judgment

Excerpt:
- constitution of india 1055. article 141; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] dismissal of slp arising from decision of high court whether binding precedent decision of division bench in rama and company v. state of madhya pradesh, [2007(ii) mpjr 229] overruled by full bench of same high court prior to delivery of decision of full bench order passed in division bench decision assailed in slp before supreme court dismissal of slp by short reasoned order, though declaration of law, but high court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by apex court and larger bench decision in jabalpur bus operators association, reported in [2003(1) mpjr 158]. court clarifies that dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361; air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp articles 226 & 227; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] power to issue writ under article 226 - [per majority] the high courts exercise original jurisdiction under article 226 of the constitution and supervisory jurisdiction and the power of superintendence under article 227 of the constitution. but, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. whenever word supervisory has been used in the context of article 226 it is in contrast with the appellate or revisional jurisdiction. when a writ is issued under article 226 of the constitution in respect of courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than article 227 of the constitution of india. it is worth noting that the power under article 227 was there in a different manner under the government of india act. power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. the confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. there is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior courts or administrative authorities. the word superintendence has not been used in article 226 of the constitution. it is also evident that the term writs is not referred to in article 227. on a scrutiny of article 227 it would be crystal clear that power of superintendence conferred on the high courts is a power that is restricted to the courts and tribunal in relation to which it exercises jurisdiction. on the contrary the power conferred on the high court under article 226 is not constricted and confined to the courts and tribunals but it extends to any person or authority. be it noted, article 226 as has been engrafted in the constitution covers entirely a new area, a broader one in a larger spectrum. when the legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the apex court. the words of the section have to be understood to mean exercise of powers under article 226 of the constitution of india which is always original. -- m.p. samaj ke kamjor vargon ke krishi bhumi hadapne sambandhi kuchakron se paritran tatha mukti adhiniyam [3/1977]. section 2: writ appeal maintainability from order of single judge-when permissible held, maintainability of a writ appeal from an order of the learned single judge would depend upon many an aspect and cannot be put into a strait jacket formula. it cannot be stated with mathematical exactitude. it would depend upon the pleadings in the writ petition, nature of the order passed by the single judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. it cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate courts has to be treated all the time for all purposes to be under article 227 of the constitution of india. it would depend upon the real nature of the order passed by the learned single judge. the pleadings also assume immense significance. it would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of articles 226 and 227 of the constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. in this context it is apt to note that there may be cases where the single judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that article 226 of the constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. it will depend upon factual matrix of each case. dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361: air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp preferred against order reported in rama and company v. state of madhya pradesh [2007 (2) mpjr 229 (db) (mp)]. - that the learned tribunal failed to consider that after the death of tularam, how the appellant will maintain himself it was submitted that the appellant was totally dependent upon the deceased and he was being maintained by the deceased.fakhruddin, j.1. this miscellaneous appeal has been filed under section 173 of the motor vehicles act, 1988, against the award dated 1.12.1992, passed by mr. g.s. rathore, member, motor accidents claims tribunal, shivpuri, in claim case no. 39 of 1988.2. the facts in the case are that on 30.3.1988 the appellant's elder brother tularam was going on the mohinisagar dam road to collect the earth. at that time, respondent no. 1, bhagwan singh, came by driving a dumper no. rju 5831, rashly and negligently and dashed the appellant's brother, as a result of which he sustained injuries and died on the spot. the alleged vehicle was owned by respondent no. 2 and insured with respondent no. 3. the appellant has claimed a compensation of rs. 1,00,000/-. the claim was contested by the respondents on various grounds.3. mr. n.d. singhal, learned counsel for the appellant-claimant, contended that the deceased was 50 years of age and he was doing the work of earthenware. the tribunal assessed rs. 400/- p.m. and determined the dependency at rs. 150/-p.m. the tribunal applied the multiplier of 10. learned counsel for the appellant submits that the amount of rs. 17,500/-towards compensation deserves to be enhanced on the following ground:that the learned tribunal failed to consider that after the death of tularam, how the appellant will maintain himself it was submitted that the appellant was totally dependent upon the deceased and he was being maintained by the deceased.4. mr. v.k. dubey, learned counsel for the respondent, contended that the appellant is a vairagi. he has renounced the world. on the other hand, mr. singhal, learned counsel, submits that the evidence of shivnarayan, pw 2, shows that the deceased was the real brother of appellant and he was being maintained by being engaged in the puja work. mr. singhal, learned counsel, cited encyclopaedic law dictionary, 2nd edn., by dr. a.r. biswas to clear the meaning of vairagi. in this dictionary vairagi has been defined as:vairagi-a religious mendicant, who has abandoned all worldly pleasures for the worship of lord vishnu.5. mr. dubey, learned counsel for the respondents, further contended that the appellant being brother of the deceased, cannot file claim petition. he contended that the appellant is not the legal representative within the meaning of fatal accidents act. he relied on gujarat state road trans. corporation v. ramanbhai prabhatbhai 1987 acj 561 (sc), especially para 10. but this case is distinguishable on the facts of the present case.6. learned counsel for the appellant-claimant contended that the amount of compensation which has been awarded is too meagre. in para 22 of the judgment the trial court held the dependency of rs. 150 p.m. and applied the multiplier of 10. rs. 2,500/- has been awarded towards mental agony. in fact while awarding the interim award the direction was given that if the amount is not paid to the claimant it will carry interest at the rate of 12 per cent.7. it has been brought to the notice of the court that there has been an amendment in the motor vehicles act, 1988, making interim compensation to be allowed up to rs. 50,000/-. in the instant case, the incident had taken place after the amendment had come into force in the motor vehicles act. this point was lost sight of by the tribunal while awarding compensation to the appellant-claimant.8. this court in bhaiyalal v. rajesh kumar misc. appeal no. 85 of 1993, enhanced the compensation to rs. 50,000/-, in view of the amendment made.9. having considered the facts and circumstances of the case, this court is of the opinion that the claims tribunal has committed an illegality in awarding the compensation. it requires to be enhanced.10. in the result, the appeal is allowed. it is directed that the amount of compensation awarded be enhanced to the extent of rs. 50,000/- with interest at the rate of 12 per cent per annum from the date of claim till the date of payment. the amount already paid to the appellant towards compensation shall be adjusted in the same.