Harprasad and ors. Vs. Sohan Singh Alias Sohan Lal and anr. - 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)]. - so far as engagement is concerned, evidence clearly suggests that the deceased was taken from his house on that date as per the statement of harprasad, aw 1, the father of the deceased. it was not stopped and deceased tried to get into it but failed and, at this stage, he was run over by the vehicle. 1 for filling the vehicle with stones which is clearly established. in the same information, sanjay singh has said that he as well as the deceased had been engaged by respondent no.bhawani singh, c.j.1. this appeal is directed against the award of the first additional motor accidents claims tribunal, shivpuri (for short, 'the tribunal') in claim case no. 109 of 1987, dated 25.1.1992.2. briefly stated, dashrath (30) died on 7.2.1986. allegation is that the accident took place due to the rash and negligent driving of the tractor no. mbh 9363 by sohan singh when the deceased was run over by the vehicle. matter was reported to the police by sanjay singh. this accident took place near rajapur stone quarry when the deceased was coming home after filling the trolley with stones. the deceased was earning rs. 20 per day. the vehicle was owned by sohan singh, who gave rs. 7,000 to the claimants apart from some grain. it is stated that after this payment no further claim is sustainable, apart from the fact that the vehicle was being driven at low speed and the deceased died while attempting to get into the vehicle. the tribunal examined the matter and found that the deceased was earning rs. 20 per day. it found that the deceased did not die due to the rash and negligent driving of the tractor on 7.2.1986; the deceased was not sitting in the tractor and the claimants were not entitled to any compensation except rs. 15,000 towards no fault liability. this award has been assailed through this appeal by the claimants who are the legal heirs of the deceased.3. learned counsel for the parties were heard. evidence perused. first question for determination in this case is whether the deceased was engaged by respondent no. 1 for filling stones in the vehicle on the date of accident. so far as engagement is concerned, evidence clearly suggests that the deceased was taken from his house on that date as per the statement of harprasad, aw 1, the father of the deceased. the vehicle was filled with stones and it was coming back. whether the deceased was in the vehicle or outside, learned counsel appearing for the oriental insurance co. ltd. submits that as per the statement of sanjay, aw 2, the deceased had asked the driver to stop the tractor to enable him to get into it. it was not stopped and deceased tried to get into it but failed and, at this stage, he was run over by the vehicle. this statement, if read with other evidence on record, is not satisfactory and cannot be depended upon for proving the engagement of the deceased by respondent no. 1 for filling the vehicle with stones which is clearly established. obviously, after filling it the deceased was to return home as per the statement of his father. therefore, it was the duty of the driver to see that he got into the vehicle safely. apart from this conclusion emerging out of proper appreciation of the evidence, we find that the version of sanjay singh in the first information report is that the tractor driver who happened to be the son of the owner of the vehicle, was driving it rashly and negligently. as soon as it reached the culvert, deceased dashrath who was sitting in the tractor, fell down and was run over by the front tyres of the vehicle. the driver left the vehicle there and ran away. in the same information, sanjay singh has said that he as well as the deceased had been engaged by respondent no. 1 on wages. therefore, it can safely be concluded that the deceased had been engaged by respondent no. 1 on that date and was travelling in the tractor when he fell down and was run over by it. the vehicle was being driven rashly and negligently resulting in the accident and the death of the deceased. it is worthwhile to record that the defence of the insurance company that the vehicle was being used for non-agricultural purpose and the driver did not possess a valid driving licence has been rejected by the tribunal as not proved. this being a finding of fact cannot be assailed. it has not been proved by the insurance company on whom the onus lay to prove the same.4. after deciding the question of negligence, we turn to the other aspect, namely, compensation payable to the claimants. evidence suggests that the deceased was earning rs. 20 per day. at the time of accident he was 30 years old. at that time minimum wages were rs. 20-25 per day. since the claimants have come forward with a definite figure of rs. 20 per day as the wages, the contention of the learned counsel for the appellants that for assessment of compensation the standard of minimum wages should be adopted, cannot be accepted. we find that the deceased was earning rs. 20 per day. obviously, he must be spending at least rs. 5 on himself leaving rs. 15 per day for the family. as per the second schedule to the motor vehicles act, 1988 the appropriate multiplier in this case should be 18. this way, the compensation (rs. 15 x 30 x 12 x 18) works out to rs. 97,200. the claimants are entitled to rs. 2,000 for meeting the funeral expenses. there is no evidence of expenditure on treatment, since the deceased died on the spot. the total compensation shall be rs. 99,200. taking the round figure we award rs. 1,00,000 (rs. one lakh) to the claimants by way of compensation in this case. it shall carry interest at the rate of 9 per cent per annum from the date of application to the date of payment. the compensation shall be paid as follows:(1) harprasad, fatherof the deceased rs. 15,000(2) simma bai w/oharprasad rs. 15,000(3) phool kunwar,wd/o deceased rs. 40,000(4) nirasha d/o thedeceased rs. 20,000(5) deshraj, brotherof the deceased rs. 10,000 the amount of interest shall also be distributed in the same ratio. the amount paid by way of interim compensation shall be deducted from the amount assessed above. amount payable to any minor(s) be got invested by the tribunal in nationalised bank till it (they) attain majority.5. costs on parties.