United India Insurance Co. Ltd. vs Sushil Agarwal and Others

Vineet Kothari, J.—This writ petition has been filed by the petitioner-United India Insurance Company Ltd. against the order dt. 22.03.2012 passed by learned Motor Accident Claims Tribunal-1, Jodhpur (for short, hereinafter referred to as ''Tribunal'') in Claim Case No. 622/2011 (253/2005)-Sushil Agarwal vs. Vinod Sharma & Ors., whereby the learned Tribunal ordered to constitute a Medical Board by the Superintendent of Mathura Das Mathur Hospital, Jodhpur for examining the case of the claimant, namely, Sushil Agarwal, as to whether failure of his kidneys occurred on account of heavy dosages of antibiotics, which were given to him on account of injuries suffered by him in the course of the motor accident. The accident in question took place on 08.06.2003 when the claimant along with his family members was going from Delhi to Haridwar in the insured vehicle Car Taxi No. RJ-19-P-7842, which was driven in rash and negligent manner its driver, Vinod Sharma, respondent No. 1 herein. By the impugned interlocutory order dt. 22.03.2012, the learned Tribunal directed the constitution of the Medical Board to ascertain this nexus of failure of kidneys, medical treatment and cause and costs thereof incurred by the claimant/respondent so that, the Tribunal could arrive at the just and reasonable compensation for the claimant as required under Sec. 166 of the M.V. Act, 1988, The petitioner-United India Insurance Co. Ltd., however, challenged this order before this Court by way of present writ petition under Article 227 of the Constitution of India and an exparte interim order was passed in its favour on 30.05.2012 by a coordinate bench of this Court in the terms that "in the meanwhile and until further orders, the effect and operation of impugned order dt. 22.03.2012 shall remain stayed."

On account of this interim order granted, the Medical Board could not be constituted and no report of the same came on record of the Tribunal. During the pendency of the present writ petition, the claim petition came to be finally decided by the learned Tribunal on 17.11.2012 and the compensation to the tune of Rs. 24,39,184/- was awarded to the claimant-Sushil Agarwal in claim Case No. 622/11 (253/2005) along-with another claim case No. 315/2012 (253/2005), for his family member. In para 38 of the final award dt. 17.11.2012, the learned Tribunal specifically refused to pay any compensation for the expenses incurred by the claimant for treatment of kidneys damage caused to the claimant, for which an additional evidence was submitted by the claimant by way of Exhibits-609 to 884 viz., medical bills of Rs. 6,30,749/-. In paras 23 and 38 of the final award, the learned Tribunal observed that since damage of kidney cannot be said to having been caused by the said accident, the insurer of the insured vehicle cannot be asked to pay such compensation. It would be relevant to reproduce the relevant paras 23 and 38 of the final award of Tribunal dt. 17.11.2012 hereunder:-

It would be also worth noting that against the interim order dt. 07.01.2012 earlier passed by the learned Tribunal, whereby at the stage of final arguments, when the claimant sought to produce the additional evidence in relation to his kidney damage, which was claimed by him to be on account of heavy medical dosages of antibiotics during the course of his treatment of injuries suffered by him on account of said accident, the present petitioner-Insurance Company, had approached this Court by way of filing writ petition being S.B.C.W.P. No. 1547/2012-United India Insurance Co. Ltd. vs. Sushil Agarwal & Ors. challenging the said order dt. 07.01.2012 of the Tribunal. The said writ petition came to be disposed of by a coordinate bench of this Court vide the order dt. 23.02.2012 upholding the order of the learned Tribunal dt. 07.01.2012: and thus permitting the claimant to produce such additional evidence. In pursuance to which, the respondent-claimant appears to have produced the aforesaid medical bills for the said treatment of kidneys of Rs. 6,30,749/-, which claim however, was rejected by the learned Tribunal in paras 23 and 38 in its final award, quoted above.

It would be pertinent to re-produce the relevant portion of order passed by the coordinate bench of this Court on 23.02.2012 deciding the earlier writ petition (CW No. 1647/12) of the petitioner-United India Insurance Co. Ltd., as under:-

It is to be noticed that in the claim petition filed, it has been specifically averred by the claimant that on account of heavy dose of anti biotics, the urea creatine was increased and the claimant had to undergo dialysis process 4 times, however, the creatine could not be controlled and therefore, after operation of the kidney, biopsy process was undertaken. According to the respondent/claimant thereafter, his both kidneys failed and, therefore, he had to undergo an operation for kidney transplantation. Thus, the documents sought to be produced by the respondent/claimant based on subsequent event are relevant for just determination of the compensation payable in terms of the provisions of Sec. 166 of the Act. In this view of the matter, the Tribunal has committed no error in permitting the respondent/claimant to lead additional evidence even at the stage of final hearing. Under the law, it is the obligation of the Tribunal to determine the just compensation payable to the victims of the accident and therefore, in the interest of justice, the discretion exercised by the Tribunal cannot be faulted with.

In this view of the matter, in considered opinion of this Court, the order impugned passed by the Tribunal does not suffer from any jurisdictional error so as to warrant interference by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India.

However, on the facts and circumstances of the case, since the petitioner has already been granted permission u/s. 170 of the Act to contest the claim on all the grounds that are available to the person against whom the claim has been made and therefore, it is directed that the petitioner shall not be denied an opportunity to lead evidence in rebuttal of the evidence to be led by the respondent/claimant, if so desired.

The writ petition stands disposed of accordingly.

In the present impugned order dt. 22.03.2012, the learned Tribunal relying upon two Apex Court''s decisions in the cases of Rajesh Kumar @ Raju Vs. Yudhvir Singh and Another, and Kanu Bhai vs. Mahaveer Singh, reported in MACD 2009(1) Raj. 291, had directed the constitution of Medical Board in furtherance and in the spirit of its previous order dt. 07.01.2012. The relevant para of the impugned order dt. 22.03.2012 is also quoted herein below for ready reference:--

Not satisfied with the permission to the claimant/respondent to adduce additional evidence, as upheld by the coordinate bench of this Court vide order dt. 23.02.2012, which the claimant did, of course, resulting in no gain to him, the insurance company again challenged the said order dt. 22.03.2012 by way of present writ petition, in which the effect and operation of the order of the Tribunal was stayed by the coordinate bench of this Court.

Consequently, the claimant/respondent No. 1 being deprived of an opportunity to bring on record the opinion of the Medical Board, to be constituted under the order dt. 22.03.2012 of M.A.C.T.-1, Jodhpur, and establish the nexus of damage and failure of both of his kidneys on account of accident and consequential medical treatment including transplantation of the kidney, arising out of the accident in question. This, obviously resulted in serious mis-carriage of justice inasmuch as though this Court while noticing this very damage to the kidneys possibly relating to heavy dosages of antibiotics for the injuries suffered by him arising out of same very accident, had allowed additional evidence to be taken on record, the most vital and important piece of such additional evidence, which could come in the form of opinion of the Medical Board which could establish the causal relationship between the accident and the kidney failure, was not permitted to be brought on record by the filing of the present writ petition by the petitioner-Insurance company.

It is true that there was no stay of the proceedings of the learned Tribunal in the claim petition pending before it in the present writ petition and, therefore, technically the Tribunal could proceed to pass the final award as it did on 17.11.2012; but, in fairness, having regard to the pendency of this writ petition before this Court on the issue of validity of its directions to constitute a Medical Board in the background of the case, narrated above, the learned Tribunal ought to have waited for the final outcome of the present writ petition. Even though either of the party could apply to the M ACT. for expeditious disposal of the claim petition, the course open to such parties was to first approach for early disposal of the present writ petition before the Tribunal could be requested to decide the claim petition itself finally.

In this context, the request made by the learned counsel for the petitioner-Insurance Company, Mr. Jagdish Vyas, that the present writ petition has become infructuous in view of the final award passed, which request was opposed by the learned counsel for the respondent-claimant, Mr. Anil Bhandari, the same does not appear to be justified. It will be like pushing the dust under the carpet. This Court cannot countenance the interest of justice to be buried in this manner at the instance of the petitioner-Insurance Company.

This Court understands the business interest of the petitioner-Insurance Company for lesser amount of compensation to be awarded by the Tribunal, better it is for them in view of mandate of law contained in Sec. 149 of the M.V. Act, 1988, which casts an obligation on the insurance company to satisfy the award as made by the Claims Tribunal or the superior Courts, but at the same time, it cannot be lost sight that the petitioner-Insurance Company is a public company and has a statutory duty or obligation under the law to satisfy the just and reasonable award of compensation made by the Claims Tribunal, as may be modified in further appeals before by High Court and even by the Hon''ble Supreme Court.

In the light of this perspective, this Court can neither appreciate the frequent writ petitions filed by the Insurance Companies against the interlocutory orders of the Tribunal nor specially in the case like one in hand before this Court that where the request of the claimant to adduce additional evidence was upheld by this Court while disposing of the previous writ petition filed by the petitioner insurance company on 23.02.2012, as quoted above, the petitioner-Insurance Company again chose to challenge the subsequent order passed by the learned Tribunal on 22.03.2012 directing the constitution of Medical board so that the nexus of kidney damage and the accident and consequential injuries and medical treatment could be established by the claimant and the Tribunal could have appreciated that additional evidence in the correct perspective to its logical end. The repeated efforts of the Insurance company to cut short this process and the evidence to be adduced by claimant so that just and fair compensation may not awarded to the claimants, cannot be said to be in consonance with the letter and spirit of Chapter XI and XII of Sees. 145 to 164, 165 to 176 of the MV. Act, 1988.

Therefore, this Court is not inclined to dispose of this writ petition has having become infructuous merely because the learned Tribunal chose to pass the final award in the absence of relevant evidence to be led by the claimant and as permitted by Tribunal itself, and reject the claim on the basis of additional evidence viz. Bills for treatment of kidneys of Rs. 6,30,749/- in paras 23 and 38 of the final award during the pendency of the present writ petition.

On its own merits, the present writ petition filed by the petitioner-Insurance Company has no foundation, much-less, the interlocutory order of M.A.C.T. dt. 22.03.2012 could be interfered in the supervisory jurisdiction under Article 227 of the Constitution of India. Delineating and reiterating the parameters of interference under Article 227 of the Constitution of India, recently the Apex Court in the case of Shalini Shyam Shetty & Anr. vs. Rajendra Shankar Patil, reported in 2010 AIR SCW 6387 held as under:--

On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court''s jurisdiction under Article 227 of the Constitution may be formulated:

(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different.

(b) In any event, a petition under Article 227 be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 have been discussed above.

(c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.

(d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.

(e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the Tribunals and Courts subordinate to it, ''within the bounds of their authority.

(f) In order to ensure that law is followed by such Tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.

(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of Tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.

(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.

(i) High Courts power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar Vs. Union of India and others, and therefore abridgement by a Constitutional amendment is also very doubtful.

(j) It may be true that a statutory amendment of a rather cognate provision, like Sec. 115 of the CPC by the CPC (Amendment) Act, 1999 does not and cannot cut down the ambit of High Courts power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court''s jurisdiction of superintendence under Article 227.

(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.

(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.

(m) The object of superintendence, both administrative and judicial is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the Tribunals and Courts subordinate to High Court.

(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.

(o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality.

In the facts of the present case we find that the petition has been entertained as a writ petition in a dispute between landlord and tenant amongst private parties.

It is well settled that a writ petition is a remedy in public law which may be filed by any person but the main respondent should be either Government, Governmental agencies or a State or instrumentalities of a State within the meaning of Article 12. Private individuals cannot be equated with State or instrumentalities of the State. All the respondents in a writ petition cannot be private parties. But private parties acting in collusion with State can be respondents in a writ petition. Under the phraseology of Article 226, High Court can issue writ to any person, but the person against whom writ will be issued must have some statutory or public duty to perform.

In the light of aforesaid legal position, this Court is fully satisfied that the present writ petition of the Insurance Company does not fall in any of the parameters laid down by the Hon''ble Apex Court for interfering with the order of learned Tribunal dt. 22.03.2012 under Article 227 of the Constitution of India. The said order dt. 22.03.2012 was rather in consonance and in continuation of the its previous order dt. 07.01.2012, which order was upheld by this Court while disposing of writ petition of the Insurance Company on 23.02.2012, copy of which order has already placed on record by the petitioner-Insurance Company itself as Annex. 10 to the writ petition. The course upon now to this Court at this stage, is to uphold the order dt. 22.03.2012 passed by learned Motor Accident Claims Tribunal-1, Jodhpur and vacating the interim order dt. 30.05.2012 in the present writ petition, to direct that the Medical Board be now constituted immediately and after a detailed and thorough examination of the medical case and history of the claimant, the said Medical Board of three doctors, including a Nephrologist, as directed by the learned Tribunal, such opinion as to the causal relationship of kidney failure and accident in question, may be placed before the learned Tribunal immediately. This exercise will be completed within a period of one month from today. Irrespective of the findings of learned Tribunal in its final award in para 23 and 38, the learned Tribunal will reconsider the case of the claimant in the light of said Medical Opinion of the Medical Board and if it comes to the conclusion that damage of both the kidneys of the claimant was having a direct and causal relationship with the accident in question, it would be free to pass award for the additional compensation in favour of respondent-claimant. If, however, the medical opinion of the Medical Board goes against the claimant, the learned Tribunal need not to pass any further orders in pursuance of this order of this Court. The final award dt. 17.11.2012 is, of course, subject to rights of regular appeals under Sec. 173-A of the M.V. Act by the respective parties. Therefore, with the aforesaid observations and directions, the writ petition filed by the petitioner insurance Company is dismissed. No costs. A copy of this order be sent to the concerned parties and the learned M.A.C.T.-1, Jodhpur.