New India Assurance Company Ltd. Vs. Smt. Chandrawati 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. - the insurance company has failed to prove by any cogent evidence that there was any violation of the terms of the policy.j.v. gupta, j.1. this appeal, filed on behalf of the new india assurance company, is directed against the award of the motor accidents claims tribunal, karnal, dated april 16, 1983, whereby a sum of rs. 76,800 was allowed as compensation to the heirs of the deceased, jai narain, out of which the insurance company was held liable to the extent of rs. 50,000 only.2. the accident took place on june 12, 1982. the deceased, jai narain, was driving a three-wheeler while faqir chand was driving the offending tractor-trolley bearing no. 4501. the claim petition was filed by the widow of the deceased and his three minor children. the tribunal ultimately found that the accident in question had taken place due to rash and negligent driving of the driver of the tractor-trolley. the annual dependency allowance of the deceased was determined to be rs. 4,800 and by applying a multiplier of sixteen, a sum of rs. 76,800 was awarded as compensation. as observed earlier, out of this amount, the insurance company was held liable to pay to the extent of rs. 50,000 only.3. at the time of motion hearing, reliance was placed on smt. chhanno devi v. het ram [1983] plr 584 ; [1986] 59 comp cas 941, to contend that since the offending tractor was being misused for carrying the marriage party and it being in violation of the terms of the policy, the insurance company was not liable for payment of any compensation. the liability, if any, was that of the owner. however, later, vide order dated march 1, 1984, the application for stay was declined on the ground that smt. chhanno devi's case [1983] plr 584 ; [1986] 59 comp cas 941, was prima facie not applicable to the present case because, therein, the occupant of the truck had died in the accident whereas in the present case the claim was made by a third party, i.e., the driver of the three-wheeler against which the truck had hit.4. learned counsel for the insurance company/appellant reiterated that since the tractor was being used for carrying the marriage party, the insurance company could not be held liable for any compensation as it was in violation of the terms of the policy. i do not find any force in this contention. as observed earlier, the claim is being made by the heirs of the deceased driver of the three-wheeler. he being a third party, the liability of the insurance company is very much there. moreover, it was held by the supreme court in skandia insurance co. ltd. v. kokilaben chandravadan [1987] 62 comp cas 138 ; [1987] i plr 665, that it will be for the insurance company to establish that the insured is guilty of any infringement or violation. if the insured is not at all at fault and has not done anything he should not have done, the insurer cannot escape from the allegation to indemnify the insured. in the present case; the insurance company has failed to prove by any cogent evidence that there was any violation of the terms of the policy. in any case, the deceased being a third party, his heirs are entitled to the amount of compensation from the insurance company to the extent it was liable under the policy. consequently, the appeal fails and is dismissed with costs.