Hema Vs. Narayan 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)]. - in the present case, on facts and on appreciation of evidence, the insurance company failed to prove that policy was made operative from 5.10 p.a.m. spare, j.1. this appeal is at the instance of claimant filed under section 173 of motor vehicles act questioning the legality and propriety of an award dated 27.9.96 rendered by m.a.c.t., mandsaur in claim case no. 38 of 1994. facts in short for the disposal of this appeal need mention infra.2. on 6.7.1992, when claimant hema aged about 6 years was going on the road, a tractor belonging to respondent no. 1 and insured with respondent no. 3 dashed her resulting in some injuries on her body such as on head and legs. this led to filing of claim petition before the m.a.c.t., out of which this appeal arises, claiming compensation for the loss and disability that the claimant suffered.3. the claim was contested by the respondents (non-applicants). so far as the insurance company was concerned the defence was that at the time of accident the vehicle in question was not insured with the insurance company. according to insurance company, the accident had occurred at 11 a.m. on 6.7.1992 whereas the policy was issued at 5 p.m. on 6.7.1992, i.e., subsequent to the occurrence. on this basis, the case of insurance company was that no liability can be fastened on the insurance company.4. learned member of the tribunal by impugned award was pleased to award a sum of rs. 6,000 by way of compensation payable to the appellant (claimant) and expenses. it was further held that since the insurance cover was issued though on the same day, i.e., on 6.7.1992 but at. 5 p.m. after the occurrence of the accident, the insurance company was exonerated from the liability. it is against this award the claimant feels aggrieved and files this appeal.5. heard ms. indira vyas, the learned counsel for the appellant and mr. a.h. khan, learned counsel for the respondent no. 3.6. the submission of learned counsel for the appellant (claimant) was that the learned member of tribunal erred in awarding only a sum of rs. 6,000 by way of compensation and secondly in any event the finding relating to exoneration of insurance company from liability is not only perverse but without jurisdiction.7. in reply the submission of mr. khan, learned counsel for the insurance company, was to uphold the award in its totality as according to him both the findings are in accordance with law and do not need any interference.8. after having heard the counsel, i am of the opinion that this appeal deserves to be partly allowed.9. in my opinion, so far as the finding regarding quantum of compensation is concerned, the same does not need any interference. the finding of the tribunal on this issue is contained in paras 12 to 16 of the impugned award. i do not find any infirmity in this finding so as to enhance the compensation already awarded by the tribunal to the claimant. the tribunal has in clear terms held that in the absence of any documentary evidence and the details filed by the claimant showing any actual expenditure incurred, it is not possible to award any amount. it is held that looking to the nature of fracture and its period it cannot be held that it has really resulted in any physical disability much less permanent one so as to entitle the claimant to claim any more compensation. even at the cost of appreciation of evidence, i could not persuade myself to enhance the compensation amount.10. now coming to the next submission of learned counsel for the appellant, i am inclined to hold that insurance company should have been held liable to pay the awarded sum. exh. d-1 is the copy of insurance cover note filed by the insurance company. perusal of this certificate of cover note no. 34597 shows that it was issued on 6.7.1992. this cover note has one column which is as follows:effective date of commencement of insurance and date of expiry of insurance.from 5.10 o'clock a.m./p.m. 6.7.1992 to midnight on 5.7.1993.11. the aforesaid column though mentions 5.10 but it is not clear whether it is a.m. or p.m. because the printed words a.m. or p.m. in the cover note are not scored. it is, therefore, not clear as to whether the intention of insurance company was to bring the said policy in force from 5 a.m. or from 5 p.m. the learned counsel for the company relied on a document exh. p-6 filed by the claimant which according to learned counsel makes a reference 5.10 p.m. i do not agree. these words are handwritten. they cannot be relied upon in view of original documents filed by the company itself referred supra and in particular exh. d-1. if the insurance company really intended to show that the insurance was done subsequent to the occurrence of accident, i.e., at 5.10 p.m. on the same date, then it should have been so specifically mentioned in all the documents such as insurance policy, cover note, etc. in my opinion, the insured was entitled to get the benefit of lapses on the part of company. indeed, since the defence of insurance company resulted in avoiding the contractual liability, it needed to be proved satisfactorily and by proper evidence. i am also inclined to hold that insurance company was somehow trying to avoid its liability on such technical grounds after receiving the premium from the insured same day. learned counsel for the insurance company relied on national insurance co. ltd. v. jikuhhai nathuji dabhi 1997 acj 351 (sc). in my opinion, this case is distinguishable on facts. in that case, it was on facts held that the accident had occurred at 11 a.m. whereas in view of special contract contained in the policy, it would come in force from 4 p.m. their lordships held on these facts found proved that company is not liable. in the present case, on facts and on appreciation of evidence, the insurance company failed to prove that policy was made operative from 5.10 p.m.12. in view of aforesaid discussion, i am of the view that the finding relating to exoneration of insurance company is liable to be set aside and it is accordingly set aside. instead, i hold that insurance company is held liable jointly and severally along with owner and driver.13. appeal is accordingly partly allowed by modifying the award to the extent indicated above. no costs.