Deenanath and ors. Vs. Wazeer (Baseer) 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)]. - thus even otherwise the conscience of the court is satisfied. here we enter into thicket of difficulties which every judge would like to avoid.s.c. pandey, j.1. this is an appeal under section 110-d of motor vehicles act, 1939, passed by the motor accident claims tribunal, sagar presided over by shri s.p. khare, district judge, sagar in mottor claim case no. 33-b/78.2. the appellants are the claimants who filed an application under section 110-d of the motor vehicles act, 1939 for recovery of damages for the death of their son aged about 12 years. it is not disputed that the owner of the bus was respondent no. 2 smt. bhagwati bai and the respondent no. 1 was a driver of the bus bearing registration no. usg 2126.3. it is pleaded by the appellants on 19.10.1986 at about 3.00 p.m. their son anil kumar was riding a cycle and was going towards katra from the oral adjoining to the civil court. he died as a result of an accident caused by the bus bearing no. usg 2126 driven by the respondent no. 1 baseer mohd. khan. the bus was being driven negligently at a high speed without giving the horn. it was also claimed by the appellants that they are entitled to receive rs. 99,000/- towards the loss of probable income from their son on the ground that if their son alive he would live for 60 years and would have earned that much amount and rs. 10,000/- for mental suffering for loss of company of their son. the total claim come to rs. 1,09,000/-.4. the respondents nos. l and 2 did not admit that the death was caused by accident with the motor bus no. usg 2126. on the other hand it was stated that anil kumar riding the cycle at a great speed and he was going down the hill. a stone got struck in the cycle chain and therefore, he fell down before the bus and received serious injuries. he died because he was not treated properly. the respondent no. 3 took the plea that it was anil kumar who dahsed against the rear portion of bus on account of rash and (sic.) negligent driving.5. the claims tribunal has come to the conclusion that anil kumar died due to accident with the bus no. usg 2126 which was being driven rashly and negligently by the respondent no. 1. it negatived the contention of respondents that' anil kumar was negligently riding the cycle and he had brought the accident upon himself. it was also held that anil kumar died due to injuries sustained by him in the accident. it was further held that at the time of death anil kumar was aged about 12 years and he had no earning capacity. therefore, the award of rs. 5,000/- with interest at the rate of rs. 6% from the date of application i.e. 16.12.1978 was granted against the respondents nos. 1 and 2 but it did not give any award against the respondent no. 3 the insurance company. the amount of rs. 5,000/- was granted on account of mental pain and suffering to the parents. the claims tribunal refused to give award to the parents for loss of dependency, on the finding that anil kumar was not earning any money and that he would not be an asset to the parents till he reached the age of 17 years (sic).6. in this appeal, learned counsel for the appellants has urged that the court below has erred in holding the respondent no. 3 is not liable for damages. this contention of learned counsel for the appellants has opposed by the counsel for the respondent no. 3 shri gulab sahane. he has contended that the conclusion of the court below is right. it is, therefore, necessary to decide this point whether the respondent no. 3 would be liable for damages. the respondent no. 3 has been made party to the proceedings initially and in paragraph 4 it has been pleaded that the opposite parties are respondent no. 1 driver, respondent no. 2 owner and respondent no. 3 the insurance company. the pleadings are not specific but in view of the fact that it is usual to implead the insurer of the vehicle too as a party to proceedings under the motor vehicles act, 1939, respondent no. 3 was made a party.7. the insurance company has also filed a written reply and contested the claim of the appellants on merits. in reply to paragraph 4 it admitted impliedly that the aforesaid vehicle was insured with the insurance company. in paragraph 7 it was also alleged that the amount claimed by the appellants was not covered by the insurance policy issued by them. it was also pleaded in paragraph 9 that the respondent no. 3 is not liable under section 95 of the motor vehicles act, 1939 as their liability is limited to the amount mentioned in the policy.8. from these allegations it is clear that there was no serious contest made by the respondent no. 3 that the bus was not insured with them. the learned claims tribunal has also not framed any specific issue on this point. on the other hand a summary of the pleadings reproduced above shows that the respondent no. 3 tacitly admitted that the bus was insured with them and their liability is limited and not to the extent claimed by the appellants. it is, therefore, held that learned claims tribunal was wrong in holding that the respondent no. 3 was not liable jointly and severally with respondents nos. 1 and 2 for the damages claimed by the appellants.9. in view of the discussion aforesaid, contention of learned counsel for the appellant is accepted and counsel for the respondent no. 3 is jointly and severally liable with respondents nos. 1 and 3.10. smt. sudha pandit counsel for the respondents nos. 1 and 2 has produced before me a photo copy of a certificate of insurance company and the policy. the certificate of insurance company and policy was shown to the counsel for the respondent no. 3 who fairly accepted that the bus was insured with them. thus even otherwise the conscience of the court is satisfied.11. now the another question which has been raised by the counsel for the appellants is that the learned claims tribunal has granted very meagre amount of rs. 5,000/- on account of death of their son caused by the accident on 19.6.1978. according to the counsel for the appellants it appears that a sum of rs. 5,000/- with 6% interest from the date of the application is very less. he pointed out that no fault liability has been enhanced now upto rs. 50,000/-. contention of counsel for the appellants was opposed by the counsel for the respondents nos. 1 & 2 by smt. sudha pandit and also by the counsel for the respondent no. 3. they vehmently urged that a boy anil kumar was aged about 12 years and he was not capable of earning and, therefore, enhancing the damages would be in realm of speculation. the appellants are only entitled to damages for mental suffering due to loss of their one son out of three.12. the boy was employed even while he was studying, he was therefore, earning to meet his personal expenses. such a boy had definitely a bright future and had many chances to succeed in life13. the only question is, what he would have earned. here we enter into thicket of difficulties which every judge would like to avoid. there is paucity on any material on record. there is an element of speculation. however, when a life of a person is cut short by an accident. we always enter into realm of speculation and presume that he would have lived his full life. let us, therefore, presume that he would have lived his full life.14. now the second question as to what amount he would have earned. this court is entitled to take judicial notice of the facts that state has issued notifications under the minimum wages act for labourers. roughly speaking the wages of a person would be rs. 30/- per day. thus, calculated the income would be around rs. 900/- per month. although it is quite possible that looking to the inflation, the wages may be considerably increased. but this court has taken a very conservative estimate of probable income of the boy.15. thus, he would have earned about rs. 900/- per month on attaining majority. out of that he would have paid rs. 200/- per month to his aged parents for about 12 years. this amount comes to rs. 28,800/-. this court is conscious of the fact in awarding rs. 200/- per month that the boy is likely to have other family obligations when he bocomes adult. thus, the major of damages for loss of the dependency would be rs. 28,800/-.16. as to amount granted by the claims tribunal for mental pain and suffering, i find that the sum is too low. the supreme court authority reported in v.s. iyer v. t.k. nair : [1970]2scr688 that the court had approved and held that rs. 5,000/- would be appropriate in case of death of a child. the accident in that case occurred in february, 1956. since those days the value of money has gone down due to inflation, it would, therefore, be just and proper to increase the damages to the extent of rs. 15,000/- on the count of mental pain and suffering.17. thus the total sum, the appellants are entitled to receive from respondents jointly and severally would be rs. 28,000/- plus rs. 15,000/-, that is to say rs. 43,800/-. they are also entitled to interest on this amount at the rate of rs. 6% from the date of award.18. as result of discussion aforesaid, is partly succeeds and it is allowed to the extent as already indicated. there shall be no order as to costs.