In the background aforesaid, the Tribunal has no authority to entertain
the application for issuance of a direction contrary to what had been given in the final
award. It can be done only when such liberty is given in the final award in reference of
judgment of Hon'ble Apex Court in the case of Mrs.Sushma Thoma & Ors. (supra). If the
judgment of Hon'ble Apex Court in the case of Mrs.Sushma Thomas is considered in
totality then firstly it is not a direction to the Tribunal but only a guideline. Those
guidelines are mainly for the safeguard of the compensation by appropriate investment.
Accordingly, while issuing the guidelines, the Hon'ble Apex Court considered the various
aspects as to what adequate safeguard can be provided to feed from being flittered away by
the beneficiaries owing to ignorance, illiteracy and susceptible to exploitation. While giving
the directions therein, the Hon'ble Apex Court was cautious to grant liberty to apply for
withdrawal of amount in emergency. The Tribunal have been directed to invest it in more
than one Fixed Deposit so that if, need be, one of such FDR can be liquidated. The direction
to invest in more than one FDR can be given while passing the award and not subsequent to
it and in the same way, liberty to apply for withdrawal of FDR can be incorporated in the
final award so that any order subsequently would not amount to review but a consequence of
the liberty given in the final award itself. The Supreme Court and the High Court while
issuing directions or guidelines do not ask any Court to act beyond its jurisdiction and even if
power of review does not exist, then also, accept the application which amounts to review or
an order contrary to the directions in the award.
In view of facts aforesaid, I do not find any illegality in the impugned
order, rather for the reasons exist for denial of release of compensation prematurely. I am of
the opinion that such power does not exists with the Tribunal unless the Tribunal grants
liberty to apply for the withdrawal in the case of emergency while passing the final award
and otherwise, the Tribunal needs to save feed being flittered away owing to ignorance and
susceptibility to exploitation, which is happening now a days.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH,
JAIPUR
S.B. CIVIL WRIT PETITION NO.300/2009
(Kapil Lodha Vs. The Judge, MACT, Jaipur)
Date of Order : 10th March, 2014
HON'BLE MR. JUSTICE M.N.BHANDARI
REPORTABLE:
Citation: I(2015)ACC407(Raj.), 2015(1)ALLMR(JOURNAL)25
By this writ petition, a challenge is made to the order dated 10.06.2008.
In the case of Kapil Lodha, the Motor Accident Claims Tribunal passed an
award in favour of the petitioner on 02.09.2005 awarding a sum of Rs. 15,00,870/- with
interest @ of 6 per cent. An amount of Rs.2,00,000/- was ordered to be given in cash and rest
of the amount was directed to be deposited in four FDRs to become mature after every five
years. An application was moved to encash the FDR, which was declined by the Tribunal.
I find that during pendency of writ petition, one FDR became due and
must have been encashed by the petitioner and second would become due in the next year
itself, thus I do not find that now a direction to release the FDRs should be given.
It is, however, necessary to discuss the issue in reference to the judgment of
Hon'ble Apex Court in the case of General Manager, Kerala State Road Transport
Corporation, Trivandrum Vs. Mrs.Susamma Thomas & Ors. reported in AIR 1994 SC
2
1631. Therein, the Hon'ble Apex Court had issued several directions to the Tribunal to ensure
appropriate investments to safeguard the feed from being flittered away by the beneficiaries
owing to ignorance, illiteracy and susceptible to exploitation. The following directions were
given in Para No.17 of the said judgment, which are quoted hereunder for ready reference:
“17. In a case of compensation for death it is appropriate
that the Tribunals do keep in mind the principles enunciated
by this Court in Union Carbide Corpn. v. Union of India,
(1991) 4 SCC 584 in the matter of appropriate investments
to safeguard the feed from being frittered away by the
beneficiaries
owing
to
ignorance,
illiteracy
and
susceptibility to exploitation. In that case approving the
judgment of the Gujarat High Court in Muljibhai
Ajarambhai Harijan v. United India Insurance Co. Ltd.,
1982(1) 23 Guj LR 756, this Court offered the following
guidelines:
"(i) The Claims Tribunal should, in the case of minors,
invariably order the amount of compensation awarded to
the minor be invested in long term fixed deposits at least till
the date of the minor attaining majority. The expenses
incurred by the guardian or next friend may, however, be
allowed to be withdrawn;
(ii) In the case of illiterate claimants also the Claims
Tribunal should follow the procedure set out in (i) above,
but if lump sum payment is required for effecting purchases
of any movable or immovable property such as, agricultural
implements, rickshaw, etc., to earn a living, the Tribunal
may consider such a request after making sure that the
amount is actually spent for the purpose and the demand is
not a ruse to withdraw money;
(iii) In the case of semi-literate persons the Tribunal should
ordinarily resort to the procedure set out at (i) above unless
it is satisfied, for reasons to be stated in writing, that the
whole or part of the amount is required for expanding and
existing business or for purchasing some property as
mentioned in (ii) above for earning his livelihood, in which
case the Tribunal will ensure that the amount is invested
for the purpose for which it is demanded and paid;
(iv) In the case of literate persons also the Tribunal may
resort to the procedure indicated in (i) above, subject to the
relaxation set out in (ii) and (iii) above, if having regard to
the age, fiscal background and strata of society to which
the claimant belongs and such other considerations, the
Tribunal in the larger interest of the claimant and with a
view to ensuring the safety of the compensation awarded to
him thinks it necessary to do order;
(v) In the case of widows the Claims Tribunal should
invariably follow the procedure set out in (i) above;
(vi) In personal injury cases if further treatment is necessary
the Claims Tribunal on being satisfied about the same,
which shall be recorded in writing, permit withdrawal of
such amount as is necessary for incurring the expenses for
such treatment;
(vii) In all cases in which investment in long term fixed
deposits is made it should be on condition that the Bank
will not permit any loan or advance on the fixed deposit
and interest on the amount invested is paid monthly directly
to the claimant or his guardian, as the case may be;
(viii) In all cases Tribunal should grant to the claimants
liberty to apply for withdrawal in case of an emergency. To
meet with such a contingency, if the amount awarded is
substantial, the Claims Tribunal may invest it in more than
one Fixed Deposit so that if need be one such F.D.R. can be
liquidated."
Sub-para (viii) of Para No.17 of the judgment quoted above directs all
the Tribunals to grant liberty to claimant/s to apply for withdrawal in case of an
emergency. The directions quoted above are to be born in mind by the Tribunals while
passing the award. It is based on the direction in Sub-para (viii) of Para No.17,
invariably applications are filed to withdraw the amount pre-maturely despite fact that
no such liberty was granted by the Tribunal at the time of passing of final award. As per
the guidelines given by the Hon'ble Apex Court in the case supra, the Tribunal can grant
appropriate liberty to the claimant to apply for withdrawal of amount. The question
would be as to whether a claimant can do it by making application without a liberty to
this effect in the final award and, if that is so, what would be the consequences.
The aforesaid issue is required to be considered for the reasons that after
passing award, deviation from the direction is nothing but results in review of the award,
though power of review does not exists in the Tribunal. If in a given case, a direction to
release amount is given on an application without liberty to this effect in the final
award, then acceptance of application in those cases would be nothing but an order
contrary to the final direction given in the award. It can be done in those cases where
Tribunal is having power to review its judgment/order/award and not in those cases
where such power does not exist.
Whether the Motor Accident Claims Tribunal is having jurisdiction to
review its award or order has been dealt with by this Court in the case of Smt. Imliya
Vs. United India Insurance Co. Ltd. & Ors. in SB Civil Writ Petition No.2404/2005
vide judgment dated 18th November, 2008. After referring the provisions of Motor
Vehicle Act and Rules made thereunder, it was found that the Tribunal has not been
given power to review its order. The relevant para of said judgment is quoted hereunder:
“The Tribunal as constituted under the Motor Vehicles Act
while dealing with the claim application even when having
the trappings of the Civil Court, its jurisdiction is
specifically defined by the statutory provisions and the
rules framed thereunder. So far as the powers of the Civil
Court that are vested in the Claims Tribunal and procedure
to be followed by the Claims Tribunal are concerned, such
aspects have specifically been delineated in Section 169 of
the Act and Rule 10.27 and Rule 10.28 of the Rajasthan
Motor Vehicles Rules, 1990. Significant it is to notice that
the provisions of Section 114 CPC or Order XL VII Rule 1
and CPC, relating to powers of review have not, as such
been made applicable to the proceedings before the Claims
Tribunal. The Tribunal, in the opinion of this Court, had no
jurisdiction to deal with a so-called review application
moved under Order XL VII CPC and the impugned order,
passed on a so-called review application, cannot be upheld.”
The perusal of para quoted above shows a reference of Section 169 of the
Act of 1988 apart from Rule 10.27 and 10.28 of Rajasthan Motor Vehicles Rules, 1990
(for short “Rules of 1990”), Section 114 of CPC and order XL VII Rule 1 of CPC. The
Tribunal has not been given all the powers as exist to the Civil Court and the procedure
therein is made summary to expedite the disposal, however, for causing evidence and other
related issues, the jurisdiction has been given by applying certain provisions of CPC,
which are made applicable. The power of review has not been included in the Rules of
1990. In view of above, it becomes clear that Motor Accident Claims Tribunal is not
having power to review its judgment/order/award and if, that is so, they cannot pass any
order contrary to the directions in the award. They can, however, correct typographical
and error in calculation as it does not amount to review.
A further reference of judgment given by the Madhya Pradesh High
Court in the case of Uttara Soni & Ors. Vs. Oriental Insurance Co. Ltd. & Ors.
reported in 2009 ACJ 276 is relevant and para Nos. 14 and 15 of the aforesaid judgment
are quoted hereunder for ready reference:
“14.The facts in the case of Narayan Lillahare 2007 (2)
MPHT 32, warranted the aforesaid verdict and we are in
respectful agreement to the same. However, in the instant
case it is the insurance company which has preferred an
application for review of the order passed by the Claims
Tribunal without there being any allegation of fraud. We
are afraid that in absence of an allegation regarding
compensation being obtained by practising fraud, the
insurance company could have invoked the inherent
jurisdiction of the Claims Tribunal. We are, therefore, of
considered opinion that the Claims Tribunal exceeded its
jurisdiction while entertaining the review application filed
by the insurance company against the quantum of
compensation which was awarded by the Claims Tribunal.
Right of insurance company to challenge award on
quantum of compensation is not permissible unless leave to
contest on all grounds is sought by the insurer under Section
170 of Motor Vehicles Act. If insurer has no right to
question quantum of compensation determined then it has
no right to seek review of the order for reduction of
compensation. It may be mentioned that award was by Mr.
S.C. Sinho (as he then was) and has been reviewed by Mr.
Vikas Jain who was posted later and without referring to
any grounds available under Order 47, Rule 1, Code of Civil
Procedure award has been reviewed particularly when
Order 47 has no application to proceedings under the Act
and Rule 240 of the Madhya Pradesh Motor Vehicles
Rules, 1994. As held in the judgments referred above review
is permissible if some fraud is played or some other special
ground is made out in inherent jurisdiction when order
passed is palpably wrong or passed under some
misapprehension. But review on the ground of error in the
judgment or on merit is not permissible.
15. For the aforesaid reasons, we are of the considered
opinion that exercise of inherent power by the Claims
Tribunal in absence of the allegation of fraud is bad and
deserve to be set aside. Accordingly, we set aside the order
dated 16.4.2005, passed by the Claims Tribunal in M.J.C.
No. 81 of 2004 and restore the award dated 24.8.2004. No
order as to costs.”
In the case aforesaid, a reference of earlier judgment of the same Court in
the case of Narayan Lillahare, 2007(2) MPHT 32 has been given but the jurisdiction to
recall the order was give only when the award was obtained by fraud and in such similar
circumstances. Therein also, the MP Motor Vehicle Rules are having no provision to give
jurisdiction of review to the Tribunal as is the position in the State of Rajasthan. It is
otherwise a settled law of the land that review of the order is permissible by the Courts
and Tribunal only when such powers are given under the Statute itself and not otherwise.
The only exception is the High Court and Supreme Court, which are having inherent
power of judicial review.
In the background aforesaid, the Tribunal has no authority to entertain
the application for issuance of a direction contrary to what had been given in the final
award. It can be done only when such liberty is given in the final award in reference of
judgment of Hon'ble Apex Court in the case of Mrs.Sushma Thoma & Ors. (supra). If the
judgment of Hon'ble Apex Court in the case of Mrs.Sushma Thomas is considered in
totality then firstly it is not a direction to the Tribunal but only a guideline. Those
guidelines are mainly for the safeguard of the compensation by appropriate investment.
Accordingly, while issuing the guidelines, the Hon'ble Apex Court considered the various
aspects as to what adequate safeguard can be provided to feed from being flittered away by
the beneficiaries owing to ignorance, illiteracy and susceptible to exploitation. While giving
the directions therein, the Hon'ble Apex Court was cautious to grant liberty to apply for
withdrawal of amount in emergency. The Tribunal have been directed to invest it in more
than one Fixed Deposit so that if, need be, one of such FDR can be liquidated. The direction
to invest in more than one FDR can be given while passing the award and not subsequent to
it and in the same way, liberty to apply for withdrawal of FDR can be incorporated in the
final award so that any order subsequently would not amount to review but a consequence of
the liberty given in the final award itself. The Supreme Court and the High Court while
issuing directions or guidelines do not ask any Court to act beyond its jurisdiction and even if
power of review does not exist, then also, accept the application which amounts to review or
an order contrary to the directions in the award.
In view of facts aforesaid, I do not find any illegality in the impugned
order, rather for the reasons exist for denial of release of compensation prematurely. I am of
the opinion that such power does not exists with the Tribunal unless the Tribunal grants
liberty to apply for the withdrawal in the case of emergency while passing the final award
and otherwise, the Tribunal needs to save feed being flittered away owing to ignorance and
susceptibility to exploitation, which is happening now a days.
Copy of this order be circulated to all the Motor Accident Claims Tribunal
of State of Rajasthan. The Registrar (Administration) to see the compliance.
In view of discussion made above, these writ petitions are dismissed.
(M.N. BHANDARI), J.
No comments:
Post a Comment