Smt. Chameli and ors. Vs. Mukesh 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. s.s. sudhalkar, j.1. an accident had taken place in which person sitting on the tractor fell down from it and was crushedunder the wheel of the tractortrolly which proved fatal. the tribunal dismissed the claim petition filed by the dependent of the deceased relying on the judgment of learned single judge in the case of the new india assurance company limited v. smt. tara wati, reported in (1994) 2 pun lr 103. in the said judgment it is observed as under :--'on consideration of the arguments of the counsel for the parties, i find no substance in the arguments of respondents counsel under section 95 of the motor vehicles act, tractor has been defined as a vehicle not meant for carrying passengers. otherwise also, it is a matter of common knowledge that tractor is not meant for carrying passengers. whosoever takes a ride on it, shall be doing so at his own risk. if some unfortunate occurrence takes place neither the driver nor its owner can be held liable and if the tractor is insured with the insurance company no liability on the insurance company for the death or injuries sustained in the accident, can be fastened on this account. in view of the provisions of the motor vehicles act, no liability could be fastened on the insurance company for the death of a person who was travelling on the tractor. the law is also further settled that when a person is travelling on a vehicle which is not meant for carrying passengers, the insurance company is not liable.'2. this case was referred to the division bench for decision on the following question;'whether in an accident in which death of or an injury to a passenger being carried on a tractor is caused, the claimants can or cannot claim compensation under the provisions of the act from the driver and owner of the tractor,'3. when the matter came up for hearing none appeared for the parties. we have read facts of this case and gone through the judgment in the case of the new india assurance company limited v. smt. tara wati (1994 (2) pun lr 103) (supra) and also the judgment by which the matter was referred to the division bench.4. section 165 of the motor vehicles act (hereinafter referred to as the 'act') is as under :'s. 165. claims tribunals : (1) a state government may, by notification in the official gazette, constitute one or more motoraccidents claims tribunal (hereinafter in this chapter referred to as claims tribunal) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both.'5. therefore, if the accident had taken place and that was caused by the use of a motor vehicle, then the tribunal shall have jurisdiction to entertain the claim. section 2(44) of the act defines tractor as a motor vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of propulsion). this definition shows that tractor is a motor vehicle.6. section 2(28) of the act defines motor vehicle as a vehicle which is mechanically propelled, adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source. from these two definitions, it is clear that a tractor is a motor vehicle and if the accident has taken place by use of a tractor then certainly claims tribunal will have jurisdiction.7. learned single judge in the case of the new india assurance company limited v. smt. tara wati (1994 (2) pun lr 103) (supra) has observed that the tractor has been defined as a vehicle not meant for carrying passengers and whosover takes a ride on it, shall be doing so at his own risk. it is also observed by the learned single judge in that case that if some unfortunate occurrence takes place, neither the driver nor its owner can be held liable. we do not agree with the view taken by the learned single judge in the case of tara wati (supra) in view of the above discussion regarding sections 165, 2(44) and 2(28) of the act. we, therefore, answer the question referred to by the learned single judge as under :--'when an accident takes place resulting into death or injury to a passenger being carried on a tractor, claim can be maintained by the injured or the dependents of the deceased (as the case may be) for compensation under the provisions of the act against driver and owner of the tractor.'8. this appeal shall now be listed before the regular bench in due course.