M.P.S.R.T.C. and anr. Vs. Smt. Sheela - 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. the unsuccessful non-applicants have directed this appeal against the award dated 27th january, 1992 passed by xiii additional m. nothing is found in the cross-examination of the witness, which makes their statements unreliable. in rebuttal, driver kishanlal was examined on behalf of the appellants but in view of the statements and reports witnesses, his uncorroborated statements is found dependable.s.b. sakrikar, j.1. the unsuccessful non-applicants have directed this appeal against the award dated 27th january, 1992 passed by xiii additional m. a.c.t., indore in. claim case no. 55/91, thereby, granting compensation of rs. 1,88,400/- with interest at the rate of 12% p.a. from the date of filing of the suit till realisation of the amount in favour of the claimant respondent and against appellants.2. facts lie in narrow compass. on 11.12.1987 at about 7.30 to 8.00 in the evening, deceased gangaprasad, husband of respondent no. 1, was coming on his moped from the side of chimanbagh at subhash marg. when deceased gangaprasad reached the petrol pump, at the same time, bus no. mpw 1553, coming from opposite direction, hit the moped of the deceased from the front side and after that collided with some cyclists coming behind deceased gangaprasad. it was stated in the application that at the time of accident, the bus was driven by the appellant no. 2 kishanlal, driver rashly and negligently. appellant no. 1 is the owner of the vehicle. as a result of the accident, gangaprasad died on the spot and his moped was damaged. some cyclists also sustained injuries in the alleged accident. the claim petition was filed by the respondent for award of compensation, due to death of her husband, in the accident. the claim petition was resisted on behalf of the appellant. learned tribunal considering the evidence adduced on behalf of the respondent/claimant, partly allowed the claim petition and awarded the compensation as indicated above. aggrieved by the award of compensation of the tribunal, the appellants have filed this appeal.3. we have heard mr. zelawat learned counsel for the appellants. none appeared for the respondent/claimant.4. the contentions of the learned counsel for the appellants is that from the evidence of the claimant, negligence of the bus driver is not proved. hence, the appellants are not liable to pay any compensation. other contentions of the learned counsel for the appellants is that the amount of compensation awarded by the learned tribunal is on the higher side and requires appropriate modification.5. from the statements of jagdishchandra (aw 1), who was injured in the same accident has filed separate application for award of compensation and stated in his statement that on the date of accident, when he was going on his cycle from chimanbag to nilkanth colony, at the same time, near dewas ghat bridge, bus no. mpw 1553 coming from opposite direction driven rashly and negligently suddenly hit him causing grievous injuries to him. statement of jagdishchandra is corroborated by the statement of shivgopal, (aw 3), who witnessed the incident. shivgopal (aw 3) in his statement has stated that at the time of incident when he was standing at the petrol pump of taking petrol in his rickshaw, at the same time, bus coming from rambag chouraha and going towards chimanbagh, hit one luna moped, which coming from the opposite direction. due to this accident, rider of luna sustained injuries and he was ta ken to the hospital for the treatment. witness shivgopal also stated in his statement that at the' time of accident, the bus was driven rashly and negligently and' suddenly, hit the luna which was coming from the opposite direction by the left side of the road. nothing is found in the cross-examination of the witness, which makes their statements unreliable. in rebuttal, driver kishanlal was examined on behalf of the appellants but in view of the statements and reports witnesses, his uncorroborated statements is found dependable.6. in our opinion, learned tribunal has rightly decided issue no. 1 is favour of the claimant/respondent, on the point of rash and negligent driving of tine bus driver. therefore, no interference is necessary on the finding recorded by the learned tribunal on issue no. 1.7. with regard to the finding on issue nos. 5 to 6 relating to the quantum of compensation awarded by the learned tribunal, learned counsel contended that the learned tribunal has committed an error in assessing monthly earnings of the deceased, at rs. 1200/- per month and also committed the error in assessing the dependeny at rs. 600/- per month and accordingly yearly dependency at rs. 7200/-. learned tribunal also committed error in applying multiplier of 22 for the assessment and loss of dependency. learned counsel conceded before us that amount of consortium of rs. 30,000/- awarded by the learned tribunal is also excessive which may suitably be modified.8. in view of the statement of respondent/claimant, smt. sheeladevi (pw 2) who specifically stated in her statement that her husband deceased gangaprasad was carrying on the business of manufacturing of clips of electric fittings, and from this business he was earning about 1200/- per month. in the cross examination in para 5, she specifically stated thather husband was giving her rs. 1200/- per month for the domestic expenses. therefore, she is stating that her husband was earning rs. 1200/- per month from his business. there is no reason to disbelieve the statement of respondent/claimant, sheeladevi (aw 2) widow of the deceased. in our opinion, the learned tribunalhas rightly assessed the finding on issue no. 5 holding that earnings of the deceased was rs. 1200/- per month from his business.9. learned tribunal while assessing compensation under the head 'dependency' assessed the dependency at rs. 600/- per month and the yearly dependency to the tune of rs. 7,200/- and then applied multiplier of 22, for assessing the dependency. in our opinion, the learned tribunal has committed the error in assessing the monthly dependency at rs. 600/- and in applying the multiplier of 22.10. in : air1994sc1631 ; general manager, kerala state road transport corporation, trivandrum v. mrs. susamma thomas and ors. has held that in assessing the monthly dependency of 1/3rd of the total earnings of the deceased should not normally be considered for his own expenses and the 2/3rd amount shall be taken into consideration for calculating the dependency. in view of the decision of the apex court, in the present case considering the total income of the deceased at rs. 1200/- per month, the monthly dependency comes to rs. 800/- per month and the yearly dependency comes to rs. 9600/-.11. it is not disputed that the age of the deceased at the time of accident was 38 years. in view of the principles laid down by the apex court in susamma's case (supra) proper multiplier, in the present case, should not exceed 14. learned tribunal has committed an error in applying the multiplier of 22. therefore, we assess the compensation under the head 'dependency' to rs. 9600/- x 14: 134,400/- we are also of the opinion that the amount of consortium awarded by the learned tribunal is also on higher side. the deceased has left only respondent/ widow of the deceased and no other family members. the compensation of rs. 30,000/- under the head 'consortium' awarded by the learned tribunal appears to be excessive. in view of the facts and circumstances of the case, we reduce the consortium of rs. 30,000/- to rs. 15300/-, which in our opinion is just and proper compensation under this head.12. in our opinion, the respondent/claimant is found entitled for the total compensation of rs. 134,400/- under the head 'dependency' plus rs. 15,500/- under the head 'consortium' totaling to rs. 1,49,900/-. on arounding we award total compensation payable to the claimant at rs. 1,50,000/- only.13. as a result of the foregoing discussion, the award passed by the learned tribunal requires modification and the same is accordingly modified as discussed above.14. in the result, this appeal is partly allowed. the compensation awarded by the learned tribunal is reduced to total compensation at rs. 1,50,000/- and directed the appellants to pay the aforesaid compensation to the respondent/ claimant along with the interest and the costs of the petition as awarded by the learned tribunal. the appellants are entitled to get set off, if any amount is paid or deposited by them in compliance with the award of the learned tribunal.15. in the circumstances, there shall be no order as to costs.16. before parting with the record, we find it fit to observe that if this modification results in a situation of refund of some amount, then tribunal shall be free to consider the request of reasonable time of installments. we say so because none appeared for the claimant here to state the position in this behalf.