New India Assurance Co. Ltd. Vs. Abdul Mazid and anr. - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 4. claimant after notice has entered appearance and has filed an application to direct the insurer to pay the entire awarded amount with interest, since he is a poor man and is going through very hard time because of the injuries sustained by him and expenses incurred in his treatment. 11. in this case, i am satisfied that award of interest at 12 per cent from the date of application is not unreasonable since claimant is a businessman who has suffered in his business on and from that day on account of the accident.s.c. mohapatra, j.1. this is an appeal by the insurer under section 173 of the motor vehicles act, 1988.2. on 31.7.1986 at about 9.30 p.m. while claimant was going back to his residence, bus bearing registration number osu 6390 knocked him down while being driven rashly and negligently. claimant sustained various injuries including fracture on his right hip joint and nasal bone. he had to remain under traction of his right leg from 31.7.1986 to 3.8.1986. thereafter, boot and bar plaster was made. on account of the accident, he permanently became lame. alleging the same, claimant prayed for an award of rs. 1,00,000/- as compensation.3. owner of the bus remained ex parte. the insurer appellant contested the claim. appreciating materials on record, tribunal awarded compensation of rs. 35,000/- with interest at 12 per cent per annum from the date of application till payment is made. insurer has filed the appeal being aggrieved by the award.4. claimant after notice has entered appearance and has filed an application to direct the insurer to pay the entire awarded amount with interest, since he is a poor man and is going through very hard time because of the injuries sustained by him and expenses incurred in his treatment. in view of this assertion, i heard the appeal on merit though records of the lower court have not been received as parties furnished the required materials for my consideration.5. tribunal has rightly held that claimant sustained injuries on account of negligent driving and has rightly directed the insurer to be liable to pay the compensation awarded. medical expenses of rs. 3,000/- awarded appear to be reasonable and call for no interference. loss of income of rs. 2,000/-and loss of future income of rs. 20,000/- is also reasonable on the materials on record. these determinations call for no interference.6. mr. p. roy, learned counsel for the appellant, submitted that there is absolutely no material in support of award in respect of rs. 10,000/- towards mental shock, pain or suffering. though compensation on this account would depend upon some guess, claimant ought to have adduced some evidence in that regard. however, in this case amount awarded being rs. 10,000/-, i am not inclined to interfere with the same since the claim petition would have to be remitted back for giving a chance to claimant and it would be prejudicial to parties as the lawyers of sambalpur have now not only ceased work but are prohibiting presiding officers to enter into their courts and offices demanding a circuit bench of this court at sambalpur. in case there would be any delay in the enquiry, claimant would be deprived of the compensation and insurer may also have to pay interest on the awarded amount. accordingly, in view of the small amount in dispute, i am not inclined to interfere with the same which is also confirmed.7. mr. p. roy, learned counsel for the appellant, challenged award of interest by the tribunal. direction to pay interest is in discretion of the tribunal subject to limitation that such interest shall not be allowed earlier than the date of making the claim. this power is vested in the tribunal under section 110-cc of the motor vehicles act, 1939 which reads as follows:110-cc. award of interest where any claim is allowed.--where any court or claims tribunal allows a claim for compensation made under this act, such court or tribunal may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf. 8. since the discretion is vested in a quasi-judicial body created under the statute, it is to be exercised judicially. mr. roy is correct in his submission that there may be cases where no interest is directed to be paid and accordingly, reasons should be given not only for awarding interest but also for the rate at which it is awarded. period from which interest is granted is also to be supported by reason. it is to be remembered by all adjudicating authorities that people in this republic where rule law prevails have reposed confidence in the adjudicating authorities because they are not arbitrary. reason destroys arbitrariness. at least it controls the same. where no interest is awarded reasons are to be given since normal rule is that a person deprived of his legitimate claim for money is entitled to interest. this is more so when a person suffers on account of injuries caused in an accident caused by a motor vehicle on account of negligence.9. normally, the person responsible for the accident is to pay compensation on the day it is caused. owner is vicariously liable for the same and he ought to offer the compensation immediately. insurer who has covered the risk of the owner also should be prompt in paying the compensation. insurer and owner should make such arrangement that they get the information immediately. it will be no excuse to delay in paying the compensation on the ground that information of such accident could not reach them. if no information is given by the person, interest paid either by the owner or the insurer, as the case may be, can be realised from the person not informing on account of his negligence. that should not be a ground to deprive the person entitled to compensation from the interest.10. taking into consideration the fact that application can be filed within a period of limitation provided, legislature has provided that interest can be paid from the date of application only. that does not mean that tribunal has to award interest from the date of application. when a claimant does not file a proper application on payment of the fees prescribed and prays for exemption or deferring the fee payable, the tribunal may consider not to award interest till the application is validly entertained. equally a claimant may cause delay in taking steps for issue of notice. in such circumstances, the tribunal may exclude the period for payment of interest. it is seen that at times insurer is either not called upon to show cause or a wrong organisation is called upon which is discovered later. in such circumstances, the tribunal may consider the date of appearance fixed after valid notice to be the date from which interest is payable by the insurer. owner on receipt of notice should disclose the name and address of the insurer since principal vicarious liability is on him and by agreement he shifts the responsibility to the insurer. it is to be remembered that claimant is not in a position to know the details of valid insurance. if insurer is made liable to pay interest, liberty may be given to recover the same from the owner. since a discretion has been vested in the tribunal which is to be exercised on consideration of facts of each case, no hard and fast rule can be laid down to consider the question of award of interest in a closed jackets formula. where discretion has been exercised reasonably, appellate court would not normally interfere with the same merely because another view of the matter is possible.11. in this case, i am satisfied that award of interest at 12 per cent from the date of application is not unreasonable since claimant is a businessman who has suffered in his business on and from that day on account of the accident. if there would have been no accident, he would have been able to earn which he has been deprived of. therefore, interest is to be paid on account of deprivation of compensation. i am not inclined to interfere with the rate in this case also although i might have taken a different view of the matter. however, i make it clear that insurer is at liberty to recover the interest from the owner.12. in the result, there is no merit in this appeal which is dismissed. no costs. in view of dismissal of the appeal, no interim order/ direction need be passed for payment as application has become infructuous.