Chatra and anr. Vs. Imrat Lal 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)]. - he was stated to be an intelligent student. 10. though the tribunal held that there was no negligence on the part of the driver, but the circumstances under which the accident took place as also the fact that the driver had no driving licence, will clearly attract the principle of res ipsa loquitur.ordershacheendra dwivedi, j.1.this order shall also dispose of misc. appeal no. 270/92, national insurance company ltd. v. chatra and ors.the challenge in this appeal is to the award passed by the claims tribunal constituted under motor vehicles act, hereby the claim petition filed by the appellants/claimants, has been dismissed.2. the national insurance co. ltd., had deposited the amount of rs. 15,000/- as interim award which was paid to claimants by the tribunal. in final award, no order in that regard was passed. therefore in appeal no. 264/92, the appellant company has prayed for the refund of the amount.3. before the tribunal the claim petition was filed by appellants under section 110 of motor vehicles act, 1939, claiming rs. 5,43,000/- as compensation on the death of the claimants' son mangilal. it is not disputed that the tractor bearing registration no. mbh 8486 was driven by respondent no. 1, at the relevant time and was insured with the respondent no. 3. 4. the claim petition was preferred on the allegations that on 2-2-1987 the tractor bearing no. mbh 8486 owned by the original respondent no. 1 mathuralal, was driven by his son respondent no. 1 imratlal rashly and negligently, which resulted in the death of mangilal. the deceased was allegedly called by respondent no. 1 and was carried in the tractor. due to rash and negligent driving of the tractor the said mangilal fell on the ground from the tractor and was crushed under its rear wheel. it resulted in his instantaneous death on the spot. after the accident the body of deceased mangilal was placed in the trolly attached to the said tractor by the village people namely pappu, toran, laxminarain and daulatram. imratlal, respondent no. 1 was stated to have brought the tractor and trolly to his khalihan and had then fled away.5. the deceased was stated to be the youngest son of the claimants. he was stated to be an intelligent student. he also used to work with his father as a labourer and used to earn 300 to 400 rupees per month. the claimants, under the different heads had claimed the compensation in the amount of rs. 5,43,000/-.6. the claim petition was later amended, impleading harnarain son of mathuralal as respondent no. 2 in place of mathuralal son of ghasiram since he was found to be the owner of the tractor. before the learned tribunal, claimant chatra examined himself as p.w.-1, prabhu as pw-2, dr. anil vijayvargiya as pw-3, ashok tiwari, s.o. in-charge as pw-4 and ramcharan as pw-5. the respondent no. 1 and also examined himself as na-1 and one laxminarain as na-2. harnarain, respondent no. 2 had also examined himself.7. the learned tribunal although found that at the relevant time the tractor was being driven by respondent no. 1 which was owned by respondent no. 2 and the deceased had died due to the injuries caused by the tractor, yet found that respondent no. 1 was not rash and negligent in driving the tractor. the learned tribunal also found that the claimants had suffered the loss of rs. 43,000/- due to the death of their son mangilal but it refused to award any compensation, holding that there was no negligence on the part of the driver and the accident was the result of negligent act of the deceased himself.8. the learned tribunal under the impugned award itself found that deceased mangilal was an occupant of the trolly attached to the tractor. it was also found that the tractor was driven by imratlal, respondent no. 1 with these findings the learned tribunal lost sight of the principle that at times the accident itself speaks of negligence of the driver, and particularly when the driver possessed no licence. the deceased was found to be crushed under the tractor wheel.9. in the instant case, it was admitted in para 6 of statement by respondent no. 1 i.e. the driver of the tractor and by respondent no. 2 i.e. the owner of the tractor, in para 2 of his statement, that respondent no. 1 had no driving licence. as such he was not authorised by law to bring the vehicle on road.10. though the tribunal held that there was no negligence on the part of the driver, but the circumstances under which the accident took place as also the fact that the driver had no driving licence, will clearly attract the principle of res ipsa loquitur. when a vehicle is driven by an unlicensee person, in contravention of the provisions of the act and the rules framed thereunder, the negligence of the person driving the vehicle would also be self proving and no further evidence of negligence may be required.11. the 'negligence' means the breach of the provisions of law as also the breach of the duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs, would do or the doing of something which a prudent and reasonable man would not do. the negligence or the rashness would depend upon the facts of each case.12. further in the instant case respondents' own witness, laxminarain, had stated to police during investigation of offence registered by police against respondent no. 1 that the deceased had died due to the injuries on his head caused by tractor wheel, as a result of rash and negligent driving of respondent no. 1. the police statement was proved by claimants/appellants from the record of criminal case of the court of chief judicial magistrate. the learned tribunal therefore erred in holding that there was no negligence on the part of respondent no. 1 and that the deceased had died due to his own negligent act. such finding has to be interfered with. it is therefore set aside.13. the learned tribunal had itself assessed the loss to the claimants at rs. 43,000/- due to the death of their son mangilal. the tribunal found the age of the deceased to be around 20 years and the dependency of claimants (aged around 50 years), to be of rs. 225/- p.m. for computing the compensation the learned tribunal had applied the multiplier of 12, which we have found to be reasonable in the facts and circumstances of the case. we, therefore, hold that the claimants are entitled to compensation of rs. 43,000/-.14. since the tractor was being driven by the unlicensee person i.e. respondent no. 1, it was the breach of material condition of insurance policy. therefore, the insurance company cannot be held liable for compensation, as held by the apex court in a recent judgment new india assurance co. ltd. v. mandar madhav tembe, (1996) 2 scc 328.15. on the above discussion it is found that the learned tribunal had ignored the material aspects of the case and had cursorily dismissed the claim petition. whereas in the circumstances and on the evidence led by both the parties the claimants were entitled to compensation. the claimants were paid rs. 15,000/- under the no fault liability. the said amount was deposited by the insurance company, which has preferred m. a. 270/92. since in the impugned award, no order regarding of its adjustment was passed, it is challenged for the limited relief. in the above facts, under the provisions of section 96(2)(b)(ii), no liability can therefore be fastened on the insurance company.16. consequently, it is held that the insurance company cannot be made liable to pay any compensation as the driver of the tractor did not possess the driving licence which was the breach of the policy condition. the company may therefore recover the amount of rs. 15,000/- from respondent no. 1 and 2 i.e. the driver and the owner of the tractor.17. the learned tribunal on the assessment of the evidence had itself assessed the loss to claimants at rs. 43,200/-. the same amount is found to be reasonable amount of compensation to which the claimants are held entitled to receive from respondents nos. 1 and 2. as the appellants had earlier received rs. 15,000/- towards no fault liability, therefore, the appellants shall be entitled to recover only rs. 28,200/- from respondent no. 1 and 2. the appellant of m. a no. 270/92 i.e. the insurance company would be entitled to recover rs. 15,000/- from respondents nos. 1 and 2. the appellant shall also be entitled to receive the interest at the rate of 12% per annum on the amount of rs. 28,200/- from the date of claim petition i.e. 11-2-1987 till its final payment.a copy of this order shall be placed on record of misc. appeal no. 270/92. however in the facts and circumstances there shall be no order as to costs.

Judgment:
ORDER

Shacheendra Dwivedi, J.

1.This order shall also dispose of Misc. Appeal No. 270/92, National Insurance Company Ltd. v. Chatra and Ors.

The challenge in this appeal is to the award passed by the Claims Tribunal constituted under Motor Vehicles Act, hereby the claim petition filed by the Appellants/Claimants, has been dismissed.

2. The National Insurance Co. Ltd., had deposited the amount of Rs. 15,000/- as interim award which was paid to claimants by the Tribunal. In final award, no order in that regard was passed. Therefore in Appeal No. 264/92, the appellant Company has prayed for the refund of the amount.

3. Before the Tribunal the claim petition was filed by appellants Under Section 110 of Motor Vehicles Act, 1939, claiming Rs. 5,43,000/- as compensation on the death of the claimants' son Mangilal. It is not disputed that the Tractor bearing Registration No. MBH 8486 was driven by respondent No. 1, at the relevant time and was insured with the respondent No. 3.

4. The claim petition was preferred on the allegations that on 2-2-1987 the Tractor bearing No. MBH 8486 owned by the original respondent No. 1 Mathuralal, was driven by his son respondent No. 1 Imratlal rashly and negligently, which resulted in the death of Mangilal. The deceased was allegedly called by respondent No. 1 and was carried in the Tractor. Due to rash and negligent driving of the Tractor the said Mangilal fell on the ground from the Tractor and was crushed under its rear wheel. It resulted in his instantaneous death on the spot. After the accident the body of deceased Mangilal was placed in the Trolly attached to the said Tractor by the village people namely Pappu, Toran, Laxminarain and Daulatram. Imratlal, respondent No. 1 was stated to have brought the Tractor and Trolly to his Khalihan and had then fled away.

5. The deceased was stated to be the youngest son of the claimants. He was stated to be an intelligent student. He also used to work with his father as a labourer and used to earn 300 to 400 rupees per month. The claimants, under the different heads had claimed the compensation in the amount of Rs. 5,43,000/-.

6. The claim petition was later amended, impleading Harnarain son of Mathuralal as respondent No. 2 in place of Mathuralal son of Ghasiram since he was found to be the owner of the tractor. Before the learned Tribunal, claimant Chatra examined himself as P.W.-1, Prabhu as PW-2, Dr. Anil Vijayvargiya as PW-3, Ashok Tiwari, S.O. In-charge as PW-4 and Ramcharan as PW-5. The respondent No. 1 and also examined himself as NA-1 and one Laxminarain as NA-2. Harnarain, respondent No. 2 had also examined himself.

7. The learned Tribunal although found that at the relevant time the tractor was being driven by respondent No. 1 which was owned by respondent No. 2 and the deceased had died due to the injuries caused by the tractor, yet found that respondent No. 1 was not rash and negligent in driving the Tractor. The learned Tribunal also found that the claimants had suffered the loss of Rs. 43,000/- due to the death of their son Mangilal but it refused to award any compensation, holding that there was no negligence on the part of the driver and the accident was the result of negligent act of the deceased himself.

8. The learned Tribunal under the impugned award itself found that deceased Mangilal was an occupant of the Trolly attached to the Tractor. It was also found that the Tractor was driven by Imratlal, respondent No. 1 with these findings the learned Tribunal lost sight of the principle that at times the accident itself speaks of negligence of the driver, and particularly when the driver possessed no licence. The deceased was found to be crushed under the Tractor wheel.

9. In the instant case, it was admitted in para 6 of statement by respondent No. 1 i.e. the driver of the Tractor and by respondent No. 2 i.e. the owner of the Tractor, in para 2 of his statement, that respondent No. 1 had no driving licence. As such he was not authorised by law to bring the vehicle on road.

10. Though the Tribunal held that there was no negligence on the part of the driver, but the circumstances under which the accident took place as also the fact that the driver had no driving licence, will clearly attract the principle of res ipsa loquitur. When a vehicle is driven by an unlicensee person, in contravention of the provisions of the Act and the Rules framed thereunder, the negligence of the person driving the vehicle would also be self proving and no further evidence of negligence may be required.

11. The 'negligence' means the breach of the provisions of law as also the breach of the duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs, would do or the doing of something which a prudent and reasonable man would not do. The negligence or the rashness would depend upon the facts of each case.

12. Further in the instant case respondents' own witness, Laxminarain, had stated to police during investigation of offence registered by police against respondent No. 1 that the deceased had died due to the injuries on his head caused by tractor wheel, as a result of rash and negligent driving of respondent No. 1. The police statement was proved by claimants/appellants from the record of criminal case of the Court of Chief Judicial Magistrate. The learned Tribunal therefore erred in holding that there was no negligence on the part of respondent No. 1 and that the deceased had died due to his own negligent act. Such finding has to be interfered with. It is therefore set aside.

13. The learned Tribunal had itself assessed the loss to the claimants at Rs. 43,000/- due to the death of their son Mangilal. The Tribunal found the age of the deceased to be around 20 years and the dependency of claimants (aged around 50 years), to be of Rs. 225/- p.m. For computing the compensation the learned Tribunal had applied the multiplier of 12, which we have found to be reasonable in the facts and circumstances of the case. We, therefore, hold that the claimants are entitled to compensation of Rs. 43,000/-.

14. Since the Tractor was being driven by the unlicensee person i.e. respondent No. 1, it was the breach of material condition of Insurance Policy. Therefore, the Insurance Company cannot be held liable for compensation, as held by the Apex Court in a recent judgment New India Assurance Co. Ltd. v. Mandar Madhav Tembe, (1996) 2 SCC 328.

15. On the above discussion it is found that the learned Tribunal had ignored the material aspects of the case and had cursorily dismissed the claim petition. Whereas in the circumstances and on the evidence led by both the parties the claimants were entitled to compensation. The claimants were paid Rs. 15,000/- under the no fault liability. The said amount was deposited by the Insurance Company, which has preferred M. A. 270/92. Since in the impugned award, no order regarding of its adjustment was passed, it is challenged for the limited relief. In the above facts, under the provisions of Section 96(2)(b)(ii), no liability can therefore be fastened on the Insurance Company.

16. Consequently, it is held that the Insurance Company cannot be made liable to pay any compensation as the driver of the Tractor did not possess the driving licence which was the breach of the policy condition. The company may therefore recover the amount of Rs. 15,000/- from respondent No. 1 and 2 i.e. the driver and the owner of the Tractor.

17. The learned Tribunal on the assessment of the evidence had itself assessed the loss to claimants at Rs. 43,200/-. The same amount is found to be reasonable amount of compensation to which the claimants are held entitled to receive from respondents Nos. 1 and 2. As the appellants had earlier received Rs. 15,000/- towards no fault liability, therefore, the appellants shall be entitled to recover only Rs. 28,200/- from respondent No. 1 and 2. The appellant of M. A No. 270/92 i.e. the Insurance Company would be entitled to recover Rs. 15,000/- from respondents Nos. 1 and 2. The appellant shall also be entitled to receive the interest at the rate of 12% per annum on the amount of Rs. 28,200/- from the date of claim petition i.e. 11-2-1987 till its final payment.

A copy of this order shall be placed on record of Misc. Appeal No. 270/92. However in the facts and circumstances there shall be no order as to costs.