Smt. Dhanpati Devi Vs. Gurbachan Lal and ors. - 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. ordervinod k. sharma, j.1. this order will dispose of f.a.o. nos. 123d of 1985 and f.a.o. no. 40 of 1986 along with x-obj. nos. 65-ciiof l986 and 66-cii of 1986 respectively. for the sake of convenience, the facts are being taken from f.a.o. no. 1238 of 1985.2. both these appeals arise out of the common award passed by the learned motor accident claims tribunal, karnal vide which a sum of rs. 15000/- was granted to the claimants in each case on account of no fault liability.3. a petition under section 110-a of the motor vehicles act, 1939 was filed by the claimants-appellants claiming compensation on account of death of janki dass and surinder pal. the learned tribunal came to the conclusion that the accident had not occurred due to rash and negligent driving of truck no. pbo 5217, which was driven by narinder pal, as no claim was raised against the owner of the car or the insurance company. on issue no. 2 it was held that the appellants are entitled to a sum of rs. 15000/- in each of the claim petitions under no fault liability. they were also held entitled to the interest @ 12% p.a. from the date of claim petition till realisation.4. the learned counsel for the appellants challenged the finding of the learned tribunal on issue no. 1 on the ground that the tribunal had wrongly disbelieved the evidence of the independent witness pw 5 mahavir tyagi, who was an eyewitness to the accident and, therefore, the finding on issue no. 1 deserves to be reversed.5. i have gone through the statement made by mahavir tyagi pw 5 and also finding recorded by the tribunal and find no merit in this contention as the learned tribunal on the basis of photographs placed on record rightly came to the conclusion that the statement of mahavir tyagi pw 5 could not be believed as it was contrary to the photographs placed on the record. the finding recorded by the learned tribunal does not call for any interference. accordingly, it is held that the accident did not take place due to rash and negligent driving of the bus and, therefore, the claimants are only entitled to compensation under the law of 'no fault liability'. the learned counsel for the appellants has placed reliance on the judgment of the hon'ble supreme court (sic) in case jagdish kaur and ors. v. raghbir singh and ors. 2004 (1) plr 670 to contend that due to enhancement of no fault liability under the new act the appellant would be entitled to a sum of rs. 50,000/-instead of rs. 15,000/- granted by the learned motor accident claims tribunal, as the hon'ble supreme court has been pleased to hold that new act would apply retrospectively and the award which was passed prior to the enforcement of new act would also be governed therein.6. in view of the judgment of the hon'ble supreme court, it is held that claimants would be entitled to a sum of rs. 50,000/-in each case along with interest @ 9% p.a. on the enhanced amount from the date of claim petition till payment. the liability shall be joint and several.7. the appeals are disposed of as above.cross objection no. 65-cii of 19868. the cross-objector has merely prayed that the award of the tribunal be upheld.9. in view of the finding recorded in the appeal. the cross objections are dismissed.

Judgment:
ORDER

Vinod K. Sharma, J.

1. This order will dispose of F.A.O. Nos. 123d of 1985 and F.A.O. No. 40 of 1986 along with X-obj. Nos. 65-CIIof l986 and 66-CII of 1986 respectively. For the sake of convenience, the facts are being taken from F.A.O. No. 1238 of 1985.

2. Both these appeals arise out of the common award passed by the learned Motor Accident Claims Tribunal, Karnal vide which a sum of Rs. 15000/- was granted to the claimants in each case on account of no fault liability.

3. A petition under Section 110-A of the Motor Vehicles Act, 1939 was filed by the claimants-appellants claiming compensation on account of death of Janki Dass and Surinder Pal. The learned Tribunal came to the conclusion that the accident had not occurred due to rash and negligent driving of truck No. PBO 5217, which was driven by Narinder Pal, as no claim was raised against the owner of the car or the insurance company. On issue No. 2 it was held that the appellants are entitled to a sum of Rs. 15000/- in each of the claim petitions under no fault liability. They were also held entitled to the interest @ 12% p.a. from the date of claim petition till realisation.

4. The learned Counsel for the appellants challenged the finding of the learned Tribunal on issue No. 1 on the ground that the Tribunal had wrongly disbelieved the evidence of the independent witness PW 5 Mahavir Tyagi, who was an eyewitness to the accident and, therefore, the finding on issue No. 1 deserves to be reversed.

5. I have gone through the statement made by Mahavir Tyagi PW 5 and also finding recorded by the Tribunal and find no merit in this contention as the learned Tribunal on the basis of photographs placed on record rightly came to the conclusion that the statement of Mahavir Tyagi PW 5 could not be believed as it was contrary to the photographs placed on the record. The finding recorded by the learned Tribunal does not call for any interference. Accordingly, it is held that the accident did not take place due to rash and negligent driving of the bus and, therefore, the claimants are only entitled to compensation under the law of 'no fault liability'. The learned Counsel for the appellants has placed reliance on the judgment of the Hon'ble Supreme Court (sic) in case Jagdish Kaur and Ors. v. Raghbir Singh and Ors. 2004 (1) PLR 670 to contend that due to enhancement of no fault liability under the new Act the appellant would be entitled to a sum of Rs. 50,000/-instead of Rs. 15,000/- granted by the learned Motor Accident Claims Tribunal, as the Hon'ble Supreme Court has been pleased to hold that new Act would apply retrospectively and the award which was passed prior to the enforcement of new Act would also be governed therein.

6. In view of the judgment of the Hon'ble Supreme Court, it is held that claimants would be entitled to a sum of Rs. 50,000/-in each case along with interest @ 9% p.a. on the enhanced amount from the date of claim petition till payment. The liability shall be joint and several.

7. The appeals are disposed of as above.

Cross Objection No. 65-CII of 1986

8. The cross-objector has merely prayed that the award of the Tribunal be upheld.

9. In view of the finding recorded in the appeal. the cross objections are dismissed.