Pradeep Rao and ors. Vs. Manoj Kumar Agarwal 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)]. s.c. pandey, j.1. this is an appeal under section 173 of the motor vehicles act, 1988, against the interim award dated 18.4.1990 amounting to rs. 7,500/- passed by the 6th additional motor accidents claims tribunal, bhopal, in m.c.c. no. 24 of 1989.2. the facts of the case are that the respondent no. 1 was a pillion rider of scooter no. mkc 9231 on 24.5.1989, driven by the appellant no. 1, pradeep rao s/o s. prasanna rao. the scooter met with an accident with jeep and the right leg of respondent no. 1 was injured. the respondent no. 1, therefore, filed a claim before the claims tribunal claiming compensation for the injuries amounting to rs. 10,23,000/-.3. during the pendency of the claim the respondent no. 1 filed an application for grant of interim award on the basis of no fault liability as provided by section 140 of the motor vehicles act, 1988.4. the respondent no. 2 in that case took a plea that the insurance company is not liable for payment of interim award because the pillion rider was not insured by the policy issued in favour of the owner of the scooter. it was also contended that under the policy the pillion rider has to be insured separately and for this purpose additional premium has to be paid. thus the insurance company sought to avoid its liability for payment of interim award.5. the motor accidents claims tribunal decided the point in favour of the insurance company holding that the insurance company is not liable for the payment of compensation because no additional premium was paid and column whereby the pillion rider was insured was struck off from the policy indicating that the owner of the scooter did not want the pillion rider to be insured.6. in this appeal filed by the owner of the scooter, it has been contended that the insurance company should also be made jointly and severally liable for payment of interim award amounting to rs. 7,500/-granted by the claims tribunal.7. section 140 (1) of the motor vehicles act, 1988, reads as under:140. liability to pay compensation in certain cases on the principle of no fault.-(1) where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section.8. it may be readily seen from this section that the insurance company is not made directly liable for the payment of compensation for no fault liability specifically. it is not disputed by the learned counsel for the appellants that the liability of the insurance company is subject to insurance policy. it is a matter of dependence on the contract and liability assigned in the policy. in other words, the legislature has not made an insurance company liable statutorily for no fault liability irrespective of its contract with the owner. the legislature could have provided in all those cases where a motor vehicle is insured, that the insurance company would be liable to pay compensation for no fault liability irrespective of the fact where the policyholder has contracted to pay premium and insure a person or not.9. in absence of such provision in the statute it is not possible to hold that the insurance company would still be liable to pay compensation where a person is required to pay the amount of no fault liability without there being any policy for the protection of that person.10. in view of the aforesaid, the appeal fails and is hereby dismissed. no costs.