National Insurance Company Ltd. vs Faridah

To enforce the no fault liability, arising out of section 140 of the Motor Act, the Claims Tribunal Pulwama, directed payment of Rs. 25,000/ as

interim relief to the claimant Mst. Faridah on the assumption that she had suffered permanent disability, because of the injuries sustained during the

use of Motor Vehicle in reference.

Aggrieved by the said direction the insurer of the alleged offending vehicle, (National Insurance Company Ltd.) has invoked the appellate

jurisdiction praying that this court may interfere with the impugned order as it is unwarranted, in that the victim of the accident, in which the motor

vehicle was involved did not as a matter of fact sustained any disability, muchless a permanent one.

It is settled a (Sic) preposition of law that an order, enforcing no fault liability under section 140 of the Motor Vehicles Act (Section 92A of the

Old Act), is not appealable. The order granting interim relief being based on socioeconomic consideration is not applicable under the Motor

Vehicle Act.

In New India Insurance Company Vs. Motor Accidents Claims Tribunal (AIR 1993 J and K 22) this court while taking note of various

decisions on the point observed:

A persual of the aforesaid sections establishes that right to claim compensation under section 92A (Section 140 of New Act) is in addition to

other rights under the Act, it has been consistently held by various High Courts and this court that the provisions of this Section have to be

construed in such a manner so as the ensure that the object of the enactment meant for providing immediate assistance to the victims of the motor

accidents or their legal heirs is effectively and expeditiously achieved. The appeals under the Act are maintainable against the final award passed in

terms of Section 110B (Section 173 of the New Act) of the Act and no provision has been made in the Act for filing an appeal against an interim

award. There is no dispute to the legal proposition that an appeal is a statutory right which cannot be conferred upon a party unless special

provision is made under law for filing such an appeal. A Division Bench of this court while disposing of CIA No. 1 of 1987 titled Oriental Fire and

General Insurance Co. Vs. Maya Devi, refused to entertain the appeal holding the order passed under section 92A of the Act to be an interim

order, not appealable. Similarly this court dismissed CIMA No. 74 of 1986 holding:

Section 91A of the Motor Vehicles Act, is a piece of beneficial legislation and while interpreting the same it is to be liberally construed. The object

of the Section cannot be defeated on hyper technicalisation. In this case I find that since SubSection (1) of Section 92A of the Motor Vehicles Act

provides for ""Joint and several"" liability, the appellant cannot be heard to make a grievance of the interim award made by the Motor Accidents

Claims Tribunal Jammu, particularly when it is not disputed that the claimant suffered a permanent disablement as a result of the accident in which

the vehicle insured with the appellant was involved"". In case of Oriental Fire and General

Insurance Company Vs. N.A.Dhanial Stores, this court held:

The provisions of Section 92A are meant on consideration of granting of an interim relief exgratia to the legal representatives of the deceased or to

the claimant, as the case may be. This part of legislation being based on socioeconomical conditions of the citizens is a beneficial part of legislation,

which is not made subject of an appeal under section 110D of the M.V. Act. This court in a Division Bench as well as in the single bench has held

the view that an appeal is not entertainable against tile interim relief granted under Section 92A of the Motor Vehicles Act"".

Such a view was reiterated by this court in case National Insurance Co. Ltd. Vs. Union of India, CIMA No. 138/88.

The bar of filing an appeal against an interim award is equally applicable to the insurance company who, under the policy of Insurance, company

who is vicariously liable to compensate the insured, the owner of the vehicle, Mr. Gupta, learned counsel appearing for the petitioners has referred

to 1986 ACJ 202 (1985 All LJ 1378) AIR 1985 Kant 171 and AIR 1986 Bombay 280, to urge that an order passed under Section 92 of the

Act was appealable. Such a plea already raised was considered and rejected by this court while deciding CIMA NO. 130/88, Janak Raj Vs.

union of India (supra) by holding:

.....In the aforesaid judgment no objection was taken regarding the maintainability of the appeal with respect to an interim order under Section

92A of the Act. The courts appear to have proceeded on the assumption that the orders under Section 92A of the Act were appealable. The

judgments cited by the learned counsel for the appellant are distinguishable and not applicable in the case otherewise also in view of the consistent

view of this court as referred hereinabove (Sic) is not appealable....

The settled legal position that emerges thus is that an order under Section 140 of the M.V. Act, is not at all appealable.

The next question that has to be addressed is whether the appeal can be treated as a petition either under Section 103 or u/s 104 of the State

Constitution. The prayer made is that if the appeal is held to be incompetent then the court may treat the memo as a petition under the aforesaid

Sections of the State Constitution. A similar prayer was made in the case New India Insurance Co. Vs. Motor Accidents Claims Tribunal (supra)

and the learned judge made reference to revision petition No. 104 of 1988 that was decided on 3111988 whereunder the conclusion drawn was:

Comparing the aforesaid two provisions it would be clear that the word ""Tribunar appearing in Art. 227 of the Central Constitution is absent from

Section 104 of the State Constitution which implies that the power of superintendence and the control of the High Court under Section 104 of the

State Constitution are limited only to the Courts and not the Tribunals. The exclusive on of the word, Tribunal"" is intentional and distinguishable

from the provisions of Art. 227 of the Constitution of India which are not involved in the instant case.......

It was further held:

'The Constitutional framers of the State even though aware of the existence of the word ""Tribunal"" in Art. 227 of the Central Constitution omitted

the same to be incorporated in Section 104 of the State Constitution with the object of providing protection to such tribunals and depriving this

court of having jurisdiction over them presumably keeping in view the object of the enactment which were sought to be achieved by such exclusion.

The respondent No. 1 cannot be equated with a court for the purposes of Section 104 of the Constitution of the State as has been argued by the

learned counsel for the petitioner. In AIR 1950 Nag 14, a Division Bench of that court after referring to and discussing a number of authorities

cited came to the conclusion that the authority appointed under the payment of wages Act was not a civil court. Similarly it was held in AIR 1979

MP 21, that the main distinction between the ""Court"" and ""Tribunal"" was that a court was a Tribunal Constituted by the State as a part of the

ordinary hierarchy of Courts, whereas a Tribunal was constituted under a special Act to exercise some special jurisdiction. It was further held that

Commissioner appointed under the Workmen's Compensation Act was a Tribunal and not a Civil Court. The provisions of Section 104 of the

State Constitution have to be sparingly exercised and no party can be permitted to invoke the jurisdiction of this court under this section as an

appeal in disguise"".

In case Smt. Gian Devi Vs. Subjudge ;CJM) Jammu, 1986 KLJ 307 this court held: The jurisdiction under Section 104 of the State Constitution is

not to be used as an appeal in disguise, it cannot be exercised to bring up an order of decision of the Subordinate Court for rehearing of an issue

raised in the proceedings, when the statutory remedy available against the order of decision has neither been exhausted or allowed to lapse

because of bar of limitation. Errothers of fact or law which are committed by the subordinate court, while acting within the bounds and limits of

their jurisdiction and authority can be scruntnized by the appellate or the revisional court and the High Court cannot in exercise of its jurisdiction

under section 104 of the State Constitution, convert itself into a court of appeal or revision to correct such errothers of law or fact allegedly

committed by the subordinate courts. The powers under section 104 of the State Constitution are not meant to come to the aid of a party who has

chosen not to avail of the statutory remedy of appeal or revision within the period prescribed by the law or limitation. If the bar of limitation does

not state the petitioner, the High Court may even, in appropriate cases, direct that the petitioner may be treated as an appeal or revision subject to

the payment of Courtfee etc. but it cannot show that indulgence after the period of revision has expired. A petition under Section 104 of the State

Constitution cannot be permitted to hoodwink law

While relying on the above said observations, it is to be held that in view of the matter, as it is, the provisions of Section 104 of the State

Constitution can not be pressed into service for grant of the relief as prayed for. The power of superintendence and control under Section 104 of

the state Constitution is available over all the courts which are subject to appellate and revisional jurisdiction of the High Court. This power of

superintendence and control cannot be exercised in respect of Tribunals that are creation of other special statutes.

The remedy under section 103 of the State Constitution is undisputedly discretionary. The basis for grant of relief in the exercise of writ

jurisdiction is that where an alternate remedy, equally efficacious and adequate, is available to an aggrieved party, he cannot seek a remedy under

section 103 of the State Constitution (Art.226 of the Constitution of India). The petitioner herein has the remedy of challenging the liability to pay

compensation on no fault basis. This remedy is available and can be sought and adjudicated upon by the Tribunal when ultimately final award is

passed. It is in this context fruitful to quota observations of the apex court in the case reported AIR 1985 SC 330:

Art. 226 is not meant to short circuit or circumvent statutory proceedings. It is only where statutory remedies are entirely illsuited to meet the

demands of extraordinary situations, as for instance, where the very vires of the statute is in question or where private or public wrongs are so

inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Art. 226 of the

Constitution. But then the court must have good and sufficient reason to byepass the alternate remedy provided by the statute.....

The High Court can refuse thus to entertain a petition under section 103 of the State Constitution and grant relief where it is noticed that the

petitioner has an alternate remedy. Where disputed facts are raised, as in the instant case viz: whether the claimant has suffered, because of the

injuries, any permanent disability, the writ court will refuse to inquire and leave the parties to get their controversy adjudicated upon by the forum,

as for instance, the Motor Vehicle Act which has created the Claims Tribunal to adjudicate upon the claims to compensation for the death or

injuries sustained in the use of the motor vehicle.

On the touch stone of the grounds mentioned above, I am of the opinion that the Insurance Company, petitioner, cannot be permitted to invoke the

jurisdiction under section 103 of the State Constitution for the purposes of depriving the claimant of the motor accident in reference of the interim

relief.

On no count can the appeal be held maintainable nor can it be treated as a petition either under section 103 or under section 104 of the State

Constitution.

The appeal is for the reasons above said dismissed as misconceived.