Jagdish Prasad Vs. Rambabu Jaishwal 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)]. - 1994 jlj 192. therefore the legal representatives/respondents would be entitled to full compensation besides the interest of 12% per annum, as in appeal under section 110-d of the act, the high court can award the interest without cross-objections, 12% per annum payable from the date of application till realisation which is well settled that in a motor accident case, wherein an application of compensation is filed the claimants are entitled to compensation with interest @12% per annum from the date of the application till the payment.s.k. dubey, j.1. this appeal is by the owner of the truck under section 110-d of the motor vehicles act, 1939 (for short the 'act') against the award dated 27.2.1985 passed in claim case no. 27 of 1981 by additional motor claims tribunal, satna.2. facts: the claimant/respondent nos. 1 to 9 filed under section 110-a of the act claiming compensation for the death of the deceased hiralal, the husband of respondent no. 9 and father of respondent nos. 1 to 8 for the death caused in motor accident on 1.5.1980 by the truck in which the deceased was traveling as a passenger as the owner of the truck carrying goods. the driver/owner of the truck and insurance company respondent no. 10 contested the claim. the defence of the insurance company was that the deceased was a passenger for hire or reward in the goods carrier, therefore the insurance company in not liable to pay any compensation or to indemnify the owner of truck.3. the tribunal after recording of evidence recorded a finding that the deceased was earning rs. 500/- per month and after deducting own expense of the deceased, monthly dependency was assessed @ rs. 350/- per month. as the deceased at the time of death was of 15 years age, a multiplier of 10 was applied, and compensation of rs. 42,000/- was calculated. out of the said a deduction was made towards lumpsum payment and for uncertainties of life a deduction of rs. 7,000/- was made. the tribunal exonerated the insurance company holding that as the deceased was traveling in a goods carrier in which against the terms of the policy, hence, the tribunal directed the payment of compensation of rs. 35,000/- with interest @ 6% per annum from the date of the application till payment against by the owner of the truck, hence the appellant owner has filed this appeal.4. learned counsel for the appellant contended that the deceased was traveling in the truck as the owner of the goods therefore in view of the law laid down by the full bench of this court in the case of hari shankar tiwari v. jugru and ors. 1987 jlj 712: 1987 acj 1 (fb) m.p., the insurance company is liable to cover the risk under section 95(1)(b) proviso (ii) of the act. 5. learned counsel for the insurance company the respondent no. 10 contended that the deceased was traveling as a gratuitous passenger at his risk. to prove that owner of the goods can also travel with the goods in the truck, the appellant has not produced the insurance policy to make the insurance company liable to indemnify the owner, therefore the award passed by the tribunal exonerating, the insurance company does not call for any interference.6. after hearing the counsel we are of the opinion that the tribunal has illegally exonerated the insurance company, when the tribunal has recorded a clear cut finding that the deceased was traveling as the owner of the goods, in that circumstance the deceased was not a gratuitous passenger, as the law is settled that if theownerof the goods or his employee travels with the goods, the insurance company shall be liable to cover the risk of such a hirer-agent or his employees travelling with the goods in a goods vehicle under proviso (ii) clause (b) of section 95(1) of the act as a passenger carried for reward or by reason of or in pursuance of a contract of employment. see hari shankar tiwari's case (supra).7. though, the compensation awarded by the tribunal is on the lower side, we are not inclined to enhance the compensation as the claimants have not preferred cross-objections. however, when the tribunal applied the multiplier after determining the dependency, committed an error in making deduction for lumpsum payment. law is settled that while determining compensation the multiplier applied takes care of all heads. see the case of dhanvanti and ors. v. phulwant and ors. 1994 jlj 192. therefore the legal representatives/respondents would be entitled to full compensation besides the interest of 12% per annum, as in appeal under section 110-d of the act, the high court can award the interest without cross-objections, @ 12% per annum payable from the date of application till realisation which is well settled that in a motor accident case, wherein an application of compensation is filed the claimants are entitled to compensation with interest @ 12% per annum from the date of the application till the payment. see the full bench decision of this court in case of prakramchand v. chuttan 1991 m.p.l.j. p. 739: ii (1992) acc 254 (fd) m.p. 1994 acj 1051 (fb).8. in the result the appeal is allowed, the award of the claims tribunal is modified and it is directed that the respondents shall be entitled to the total amount of rs. 42,000 with interest @ 12% per annum from the date of the application till payment from the insurance company. the said amount shall be deposited by teh insurance company before the tribunal within a period of two months from today. on deposit of the amount the claims tribunal shall issue notice to the respondents/claimants for disbursement of the amount and the amount shall be disbursed in the light of the guidelines laid down by the supreme court in the case of general manager, kerala state road transport corporation v. mrs. susamma thomas and ors. : air1990sc1979 no costs. the record of the court below be sent post-haste with a copy of this judgment.