New India Assurance Co. Ltd. vs Kasturibai and Others

Tej Shankar, J.—Heard.

Learned counsel for the appellant concedes that steps for service have to be taken for respondent No. 5. Learned counsel for the respondent Nos. 1 to 4 points out that the appeal itself is not maintainable and as such it will be futile to take steps for service of respondent No. 5. He relied upon the case of Gaya Prasad v. Suresh Kumar 1992 ACJ 200 (MP), in which Full Bench of this court has specifically held that order of interim compensation u/s 140 of the Motor Vehicles Act is not appealable u/s 173. It has further been observed that if such order is passed arbitrarily the High Court can give relief under Article 227 of the Constitution of India. Learned counsel for the appellant points out that an application has also been moved for converting the appeal into a writ petition.

I have heard the learned counsel on the points raised. It may well be said that in the aforesaid authority of Gaya Prasad and Another Vs. Suresh Kumar, it has been observed, as stated above, that if the appeal does not lie but if the order is arbitrary, relief can be given under the provisions of Article 227 of the Constitution. There is nothing to show that any allegation is made that the impugned order is arbitrary. Consequently, the question of converting the appeal into a writ petition does not arise. The appeal is not maintainable and there is no allegation of arbitrariness in the impugned order, the appeal and the application deserve to be dismissed as no useful purpose would be served in converting the appeal into a writ petition.

The appeal is consequently rejected and the application for converting the appeal into a writ petition is also rejected. In the facts and circumstances of the case parties shall bear their own costs of this appeal.