Triveni Prasad and ors. Vs. Indrapal Kachhi 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)]. - 1 and for this reason the finding was bad. the evidence led by the appellants is so weak that this court cannot hold that they were able to discharge the burden of proof placed upon them.s.c. pandey, j.1. this is an appeal against the award dated 6.3.1990 passed by motor accident claims tribunal, rewa, in claim case no. 34/88.2. the facts of this case are as follows:the appellant no. 1 is the owner of the tractor to which a trolley is attached. it is registered as mpa 7901. the respondents filed an application before the motor accident claims tribunal claiming that their son banaspati died as a result of accident caused by rash and negligent driving of tractor mpa 7901 by appellant no. 2 on 14.5.1988 at about 8.00 p.m. it was also stated in that banaspati was studying in vth class and was earning rs. 10/- per day as a casual labourer. it was alleged that tractor dashed against banaspati when he was standing near the house of appellant. they claimed rs. 65,000/- in all by way of damages.3. the appellants denied that any such accident took place with their tractor.4. the claims tribunal after full trial has held that appellants are liable for the death of banaspati and it awarded rs. 30,000/- by way of damages against the appellants and interest of rs. 20% per annum from the date of the application i.e. 16.6.1988.5. in appeal mr. sanjay agrawal counsel for the appellants contended that the motor accident claims tribunal was wrong in awarding the damages against the appellants because it was not proved that accident was caused by the tractor of appellant no. 1. further the learned counsel urged that there is no issue as to casual employment of the deceased with the appellant no. 1 and for this reason the finding was bad. mr. umesh shrivastava counsel for the respondents equally vehmently contended that the order of the tribunal is correct.6. the crucial question for determination is whether there any evidence on record to hold that banaspati died as a result of the accident caused by the tractor of the appellant no. 1 driven rashly and negligently by appellant no. 2. the claims tribunal has found in paragraph 5 that there was no eye witness of the evidence and therefore, it would rely on circumstantial evidence. it is, therefore, necessary to examine the claim of the appellants that they are not liable for damages. the evidence of pw. 1 indrapal specifically says that banaspati was employed with the appellant no. 1 and used to do the job for filling soil in the tractor. this statement of pw.l indrapal is not rebutted by triveni prasad witness no. 1 for non-applicants remained significantly silent on this point. there being no specific denial by owner of tractor-trolley value of the driver n.a.w. 3 shyamlal kol is of no value. i am inclined to accept the version of respondent no. 1 that the boy banaspati was employed with triveni prasad for removing soil by the tractor trolley. the statement of a.w. 1 indrapal is that on fateful day i.e. 14th may, 1988, banaspati went on his employment on the tractor trolley for filling earth in the trolley. again triveni prasad does not say a word against this statement of respondent no. 1. even shyamlal does not specifically deny that the boy went in the tractor. i, therefore, believe the statement of indrapal and hold that banaspati was employed with triveni prasad vishwakarma and on 14th may, 1988 went in tractor for performing his duties. it is not in dispute that the injured boy was brought in tractor to his father's house and then he died due to injuries received by him in the accident. thus, these two events separated by a gap of time and fairly clear. what happened in between? how did boy receive the injuries? the answer to these questions must be given by the appellants. because they have the special knowledge of the fact. section 106 of the evidence act reads under:burden of proving fact especially within knowledge. when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.7. it would be readily seen that clear and cogent evidence should have been given by the appellants to show what happened in the gap of time already mentioned. the evidence of appellants is not clear how the boy met with an accident. why was he lying in front of the house of appellant no. 1. in case they wanted to say that the boy met with an accident by means of truck then they had an ample opportunity to prove the same easily. the evidence led by the appellants is so weak that this court cannot hold that they were able to discharge the burden of proof placed upon them. the evidence of n.a.w. 1 triveni prasad vishwakarma, n.a.w. 2; rajkumar vishwakarma. n.a.w. shyamlal kol and n.a.w. 4 narayan; kol is unworthy of any credence. shyamlal kol n.a.w. 2 is servant of the respondent no. 1 and his testimony is highly interested. therefore, i have no hesitation in rejecting the contention of mr. sanjay agrawal and uphold the finding of the tribunal though for altogether different reasons. once it is held that the death of the boy was on account of injuries that could be caused by the tractor trolley of the appellant no. 1 and in veiw of any explanation about the injuries it has to be presumed that injuries were caused by tractor of the appellant no. 1 driven by appellant no. 2.8. as to question of rash and negligent act on the part of driver of tractor, the accident speaks for itself res ipsa loquitor. dr. y.s. tiwari a.w. 4 has found eight injuries on the person of the boy and has opined that these injuries could be caused by tractor accident. even the appellants do not deny accidental death. they say that the accident occurred with a truck the burden of proof was on them. they cannot rely on in hearsay evidence and get away without paying damages. thus this court finds that banaspati died when he met with accident with tractor trolley of the appellant no. 1 on 14th may, 1988 and this accident occurred on account of rash and negligent driving of tractor by shyamlal kol.9. the learned counsel for the appellants did not assail the amount of damage granted by tribunal. even otherwise this court does not see any reason to differ with tribunal as to amount granted by it in its award.10. the appeal, therefore, fails and is dismissed with costs.