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Judgment
These two appeals are directed against the order dated 10.07.2013 whereby the MACT, Bengaluru has returned the original claim petitions to the
claimants on the ground of lack of territorial jurisdiction, for presenting the same before jurisdictional Tribunal.
After the filing of these appeals, the Office/Registry, after doing scrutiny has raised an objection as to the maintainability of these appeals,
presumably in the absence of a judgment and award.
The Office not being satisfied with the explanation offered by the counsel on record, has posted these appeals for the consideration of tenability of the
office objection.
Learned counsel for the appellants submit that the impugned order of the MACT returning the claim petitions as they are, for presentation before
the jurisdictional Tribunal amounts to a judgment and award and therefore, the same are appealable. He further submits that the objection raised by
the Office after scrutiny, is too technical in nature and therefore, to do justice to the aggrieved, the appeal should be taken up on merits on the
premises that the impugned orders otherwise also are appealable under Section 172(1) of the Indian Motor Vehicle Act, 1988 (hereinafter
‘Act’).
The learned counsel for the contesting respondent-insurer per contra submits that it has long been settled position of law that a right of appeal being
a substantive right arises only as a creature of law and subject to the limitations and conditions prescribed by the law maker; the right of appeal
granted under Section 173(1) of the Act is only against an award and that the impugned orders not being the awards, the appeals are incompetent. He
further submits that in the guise of interpretation of law, a right of appeal which otherwise does not exist cannot be created by the Court.
Adumbrating his objection to the maintainability of the appeals against an impugned orders, the learned counsel for the respondent submits that the
non-availability of right of appeal per se does not mean that the orders impugned herein are immuned from the challenge and that the challenge can be
in writ jurisdiction vested in this Court under Articles 226 and 227 of the Constitution of India.
I have heard the learned counsel for the appellants and the learned counsel for the respondent-insurer. I have perused the appeal papers and the
statute book.
Section 173(1) of the Act reads as under:
(1) “Subject to the provisions of sub-section (2) any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of
the award, prefer an appeal to the High Court:
Provided that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High court unless he has
deposited with it twenty-five thousand rupees or fifty per cent of the amount so awarded, whichever is less, in the manner directed by the High Court;
Provided further that the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was
prevented by sufficient cause from preferring the appeal in time.â€
(Rest of the provisions of this Section are omitted not being relevant for our purpose.)
In the Act, the expression “award†is not defined.
Therefore, obviously, the question as to which order of the MACT amounts to award crops up for consideration.
In the case of Yellavva and others v. National Insurance Co. and another (AIR (2007) SC 2582), the Apex Court considered the said question in a
different contest. At paragraph 16, the Apex Court stated “the question which is required to be considered is what would be the meaning of the
term award when such a contention is raised-----“ At Paragraph 18, the Apex Court indicates the features of an award by stating “--- Keeping
in view the provisions of Section 168 of the Act, there cannot be any doubt whatsoever that an award for enforcing the right under Section 140 of the
Act is also required to the parties concerned have filed their pleadings and have given a reasonable opportunity of being heard. A Claims Tribunal,
thus, must be satisfied that the conditions precedent specified in Section 140 of the Act have been substantiated, which is the basis for making an
award.â€
The learned author, Sri. A.K.Bhat, in his legal classic “Motor Accidents and Claims†First Edition February, 2018 published by Swatantra
Prakashana, Bengaluru, at paragraph 7.1.1, at page 340 writes, “-----However, it can be said that an award means, an order passed by the tribunal
adjudicating upon the claim for compensation determiningthe amount ofcompensation payable, along with cost and interest, if any, by all or any of
therespondents, and the insurer, including determination of an inter se claim between the respondents and the insurer in such claim.
The Full Bench (Five Judges) of the Madhya Pradesh High Court, in the case of Oriental Insurance Co. v Chittaman and other( AIR 1995 Madhya
Pradesh 229) had also considered the meaning of the term “awardâ€.
‘Award’ is explained in Black’s Law Dictionary, Fourth Edition, at Page 174 as meaning â€" “to grant, concede, of adjudge to; to
give or assign by sentence or judicial determination…… the decision or determination rendered by arbitrators or commissioners, or other private or
extra judicial deciders, upon a controversy submitted to them; also the writing or document embodying such decision.†As award, as generally
understood, is a document incorporating the adjudication or determination of a matter in dispute by a person competent to adjudicate or determine the
dispute. There is nothing in Chapter X or XII of the Act to indicate that any different meaning has been attributed to the expression in 173 of the Act.
The decision of liability under Section 140 is an award which can be challenged under Section 173.
…… The Motor Vehicles Act, 1988 does not define an award. It must, therefore, follow that the expression ‘award’ contained in the
provisions referred to above carries its general meaning and content. A decision under Sec.140 is a decision on a claim for compensation thereunder.
It must be passed after following the procedure contemplated in Section 166 (2) of the Act. It must indicate the findings and the reasons, at least
briefly. These attributes of “determination†of a claim under Section 140 would certainly make the “determination†an award for the purpose
of Section 166 as well as 173 of the Act. With great respect, we are of the opinion that the decision in Gaya Prasad’s case (1992 MPLJ 485)
(FB) does not lay down good law, to the extent it holds that an appeal does not lie under Section 173 of the Act against determination of a claim for
compensation under Section 140 of the Act. We hold that determination of a claim under Section 140 of the Act is an award and an appeal lies against
such an award under Section 173 of the Act.â€
So, to put it succinctly, when a claim petition is adjudicated by the MACT, determining the rights of the parties thereto, ordinarily such order
constitutes an award. In the instant case, the MACT has not adjudicated upon the claim petitions; it has only returned the said petitions on the ground
of lack of territorial jurisdiction so that the same are presented to the jurisdictional Tribunal for adjudication. Therefore, going by the observations of
the Apex Court and of the Madhya Pradesh High Court, the impugned orders do not constitute “awards†and consequently, the appeals are
incompetent.
For all the reasons stated above, these appeals fail; however, it is open to the appellants to work out their grievance elsewhere in accordance with
law.