Rajkumari Pandey and anr. Vs. Sanjay Kumar JaIn 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)]. - 3. driver and owner of the minibus have been proceeded ex parte having failed to appear and defend the case. claimants are not satisfied with the amount so assessed, hence this appeal.bhawani singh, c.j.1. this appeal is directed against the award of iii additional motor accidents claims tribunal, bhopal, dated 22.2.1995 passed in motor accident claim case no. 51 of 1993.2. santosh kumar pandey was employed with national fertilizers ltd. as junior stenographer. on 4.9.1992, he was coming on scooter no. moc 5412 along with one rajesh kumar pandey towards jyoti talkies when minibus no. mp 04-f 603 driven by kunji lal sahu rashly and negligently and owned by sanjay kumar jain and insured with the new india assurance co. ltd., dashed against the scooter. as a result of this accident, both the occupants of scooter died. case under section 304a of the indian penal code was registered for prosecution. claim for rs. 50,42,000 was preferred.3. driver and owner of the minibus have been proceeded ex parte having failed to appear and defend the case. insurance company has stated that minibus was insured with it and it has been denied that it was being driven rashly and negligently resulting in death of the deceased. claim has been disputed and it is also stated that the driver did not possess driving licence at the time of accident, thereby committing breach of policy conditions. moreover, it was not informed about the accident. the scooter was being driven rashly and negligently and drivers of both the vehicles contributed to the accident.4. the tribunal found that accident took place due to rash and negligent driving of the bus resulting in accident and death of the deceased. the tribunal came to the conclusion that it was not proved that scooter was responsible for the accident nor it is proved that there was breach of policy conditions. consequently, the award for rs. 2,70,000 has been made carrying interest at the rate of 12 per cent per annum from the date of application till date of payment. claimants are not satisfied with the amount so assessed, hence this appeal.5. the matter is considered, counsel for parties heard and record perused. first question for examination is the taking place of accident. there is no dispute that the bus was being driven rashly and negligently. it struck against the scooter on which deceased santosh kumar and rajesh kumar were travelling next question is what is just compensation payable in this case. two documents are available on file. in one document, exh. p/al, the salary of deceased is shown to be rs. 2,284.95 and other benefits to the extent of rs. 858. another document is at page 14 of the file. it is dated 30.9.92. it shows rs. 3,910.85 as monthly salary of the deceased. it includes some of those allowances which are reflected in certificate dated 1.9.1994, exh. p/al. however, it cannot be taken into consideration since it has not been proved. therefore, document exh. p/al has to be taken into consideration for determining compensation in this case. total amount after calculating other monthly benefits to the basic salary, i.e., fixed dearness allowance and variable dearness allowance, comes to rs. 3,142.6. contention of learned counsel for the respondent new india assurance co. ltd. that amount receivable by the deceased towards the medical allowance, fixed canteen subsidy, washing allowance, l.t.e., bonus, ex gratia, uniform payable from time to time should not be added to the monthly salary of the deceased for assessment of the compensation. however, mr. lalwani, learned counsel for the claimants disputes this proposition, submitting that this amount forms part of the monthly earning of the deceased from the employer, therefore, it has to be taken to be the monthly income of the deceased for the purpose of calculating compensation in this case. we think there is substance in this submission.7. after deducting 1/3rd towards personal expenses of the deceased from the amount of rs. 3,142, monthly dependency comes to rs. 2,095. however, we take a round figure and fix it at rs. 2,000. therefore, the amount of compensation would come to rs. 4,08,000 (rs. 2,000 x 12 x 17). claimants will also be entitled to rs. 15,000 towards consortium, rs. 2,000 towards funeral expenses and rs. 3,000 for medical expenses, taking the total amount of compensation to rs. 4,28,000 (rupees four lakh twenty-eight thousand).8. accordingly, the appeal is allowed. award of the tribunal dated 22.2.1995 is modified and compensation in the sum of rs. 4,28,000 is ordered to be paid to the claimants with interest at the rate allowed by the tribunal. costs on parties.