Usha Vs. Madhya Pradesh State Road Trans. Corpn. 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)]. shambhoo singh, j.1. claimant has filed this appeal for enhancement of compensation amount awarded to her vide award dated 7.11.1996 passed by additional motor accidents claims tribunal, jaora, in claim case no. 19 of 1995.2. claimant's case in brief was that on 7.11.1994 her ambassador car no. rj 09-c-0269 driven by her driver ramesh (aw 2) while going to neemuch from ratlam, near village manan kheda was dashed from behind by bus no. mp 09-d-02850 owned by m.p. state road transport corporation and driven by respondent no. 2, as a result of which it got damaged. the appellant filed claim case no. 19 of 1995 and sought compensation of rs. 1,63,105. the respondents resisted the claim and averred that accident occurred due to rash and negligent driving of the car. the tribunal on appreciation of evidence held that the accident occurred due to rash and negligent driving of the bus by respondent no. 2 and awarded compensation of rs. 6,000 holding that under section 147(2) of motor vehicles act more than this amount cannot be awarded for damage to property, if the appellant wanted more compensation she could file civil suit. hence, this appeal.3. mr. patwa, learned counsel for the appellant, has submitted that the tribunal committed grave error in applying section 147(2) of the motor vehicles act. this section relates to liability of insurance company. in this case, the offending bus was not insured and the appellant was not claiming any amount from insurance company. the respondent corporation was liable to pay the entire amount of compensation for the damage caused to the appellant's car. mr. chauhan, learned counsel for the respondents, supported the impugned award.4. we considered the arguments advanced by counsel for both sides and also perused the record. we agree with mr. patwa, learned counsel for the appellant that the tribunal committed grave error in applying section 147(2) of the motor vehicles act and holding that no amount more than rs. 6,000 could be awarded for damage caused to the property. section 147 of the motor vehicles act envisages requirement of insurance policy and provides for limited liability. the bus was not insured and the appellant did not claim any amount from the insurance company, therefore, this section does not apply and the corporation was liable to pay the entire amount of compensation for the damage caused to the car. the appellant claimed compensation of rs. 1,63,105. dr. usha verma deposed that though car was of 1968 model and she had purchased it for rs. 45,000-rs. 50,000 but she had spent rs. 1,00,000 on its repairs and renovation. however, she did not state as to how much loss was caused to her car due to this accident. driver ramesh deposed that due to accident, this car's headlights and dickey were pressed and engine was uprooted and the wheels were broken. he also did not state as to how much loss was caused to the car. he, however, stated in the cross-examination that the repair would require expenditure of rs. 25,000-rs. 30,000. the appellant examined sudhir nema, surveyor, who inspected the car and submitted his report exh. p-5. he also did not make any statement about the loss caused by this accident. looking to the report exh. p-5 prepared by the surveyor and the photographs of the car, in our opinion, the damage caused to the car can be assessed at rs. 25,000 as driver ramesh stated that repair of the car would require expenditure of rs. 25,000.5. as stated earlier, the tribunal committed error in awarding only rs. 6,000 as compensation for the damage caused to the car, we allow the appeal and modify the impugned award and direct that respondent corporation shall pay rs. 25,000 to the appellant with interest at the rate of 12 per cent per annum from the date of filing of the claim application (after adjusting the amount already deposited) within two months from the date of receipt of copy of this judgment. no order as to costs.