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Judgment
Devi Prasad Singh, J.—The petitioner has approached this Court under Article 226/227 of the Constitution of India challenging the impugned award dated 21st of October, 2004 rendered by the Motor Accident Claims Tribunal/Vth Addl. District Judge, Faizabad to the extent it authorizes the Insurance Company to recover the amount in question directly from the petitioner. While assailing the impugned order, learned counsel for the petitioner has relied upon the Judgment of the Apex Court reported in 2003 (3) SCC 338, United India Insurance company Ltd. v. Lehra and others. 2002(9) SCC 390, Oriental Insurance Company Ltd. v. Ranjit Saikia and others and 2001 (4) SCC 342, New India Assurance Co., Shimla v. V.S. Kamla and submits that in view of the judgments of the Apex Court. The Tribunal was not competent to render the impugned award giving the liberty to Insurance Company to recover the dues from the petitioner who is the owner of the vehicle in question.
The substantial question of law involved in the present writ petition is as to whether for the part of cause of action arisen in pursuance to the award rendered by the Motor Accident Claims Tribunal, a writ petition under Article 226/227 of the Constitution of India shall be maintainable or not? Whether any appeal shall lie for the part of cause of action arisen on account of an award under Section 173 of the Motor Vehicle Act?
A preliminary objection was raised by the Standing Counsel that the present writ petition is not maintainable under Article 226/227 of the Constitution of India on the ground that petitioner has got statutory alternative remedy to prefer an appeal under Section 173 of the Motor Vehicle Act, 1988 (in short hereafter referred as an Act). However, learned Counsel for the petitioner submits that the petitioner has got no grievance against the impugned award to the extend it relates to quantum of compensation awarded by the Tribunal against the Insurance Company. The petitioner has assailed the impugned award only to the extent that Tribunal has authorized the Insurance Company to recover the dues directly from the petitioner. In the present writ petition, petitioner has claimed the following reliefs:
�(a) issue a writ of certiorari quashing the direction contained in the Judgment/award dated 21.10.2004 passed by the Motor Accident Claims Tribunal vide Annexure No.1 authorising the Insurance Company, opposite party No.1 to recover the amount in question from the petitioner.
(b) Issue any other writ, direction or order as may seem to be expedient in the ends of justice.
(c) award cost of this petition; and to
(d) waive the statuary notice as the matter is urgent.�
From the perusal of the relief claimed in the present writ petition, it is obvious that petitioner has assailed the impugned award to the extent it relates to permitting the Insurance Company to recover the amount in question from the owner of the Vehicle. Section 168 of the Motor Vehicle Act deals with the award of Claim Tribunal and Section 173 of the said Act contains the provisions for filing of an appeal before the High Court. For convenience, Section 168 & 173 of the Motor Vehicle Act are reproduced as under:
�168. Award of the Claims Tribunal (1) On receipt of an application for compensation made under Section 166. The Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard. Hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of Section 162 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be;
Provided that where such application makes a claim for compensation under Section 140 in respect of the death or permanent disablement of any person, such claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter X.
(2) The Claims Tribunal shall arrange to deliver copies of the award to the parties concerned expeditiously and in any case within a period of fifteen days from the date of the award.
(3) When an award is made under this section, the person who is required to pay any amount in terms of such award shall, within thirty days of the date of announcing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as the Claims Tribunal may direct.�
Appeals (1) Subject to the provisions of subsection (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 percent 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.
(2) No appeal shall lie against any award of a Claims Tribunal, if the amount in dispute in the appeal is less than ten thousand rupees.�
A perusal of the Section 168 shows that the Tribunal while rendering an award shall be within jurisdiction to determine the amount of compensation as well as specifying the person or persons to whom compensation shall be paid. While doing so, the Claims Tribunal shall also specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or anyone of them. While exercising the power under the provisions contained in Section 168 of the Motor Vehicle Act. Learned Tribunal had rendered the award, the copy of which has been filed as Annexure No.1 to the writ petition. Relevant portion of the award is reproduced as under:
A perusal of the operative portion of the award reproduced herein above shows that the tribunal had authorized the Insurance Company to recover the dues in question from the owner of the vehicle.
Since, the question of maintainability of the writ petition is being considered, it is not necessary at this stage to dwell over the merit of the case or the condition provided by the Tribunal empowering the Insurance Company to recover the dues. Of course, in case, the writ petition is being considered on merit, the judgment cited by the learned Counsel for the petitioner shall be available to assail the impugned award. While relying upon the judgment of the Apex Court referred herein above, learned Counsel for petitioner submits that in view of these judgments of the Hon''ble Supreme Court, the Tribunal does not have got power to authorize the Insurance Company to recover the dues directly from the owner of the vehicle. This aspect of the matter can be considered only in case, the writ petition is held to be maintainable under Article 226/227 of the Constitution of India.
Now, coming to the question of maintainability of the writ petition, Section 173 should be read in its letter and spirit. Section 173 provides that any person aggrieved with the award of the claims tribunal may within 90 days from the date of the award, prefer an appeal to the High Court. The Section 173 does not provide that in case, a person is aggrieved with a portion of the finding of the award given by the tribunal will not be empowered to prefer an appeal. A plain reading of Section 173 of the Act shows that in case a person is aggrieved by the entire findings of the award or its fraction, he can file an appeal to ventilate his grievance. Accordingly, the petitioner has got alternative remedy to prefer an appeal under Section 173 of the Act, on the ground he had approached this Court under Article 226/227 of the Constitution of India. The power of appellate Court is wider than the power of this Court while exercising jurisdiction under Article 226/227 of the Constitution of India.
In a case report in 2003 (VI) SCC 220, Dwarka Prasad Agarwal and another v. Ramesh Chander Agarwal and others, Supreme Court held that in a case where the dispute between the parties were eminently is of civil nature Apex Court ruled that where the Code of Civil Procedure confers jurisdiction on the Civil Court to determine a dispute of Civil nature, unless the same is barred under a statute either expressly or by necessary implication, the controversy should be adjudicated upon by the civil Court itself and not by excersing the extraordinary power by the High Court.
For convenience relevant portion from para 22 of the said judgment is reproduced as under:
�The dispute between the parties was eminently a civil dispute and not a dispute under the provisions of the Companies Act. Section 9 of the Code of Civil Procedure confers jurisdiction upon the Civil Courts to determine all disputes of civil nature unless the same is barred under a statute either expressly or by necessary implication. Bar of jurisdiction of a Civil Court requires strict interpretation. The Court, it is well settled, would normally lean in favour of construction, which would uphold retention of jurisdiction of the Civil Court. The burden of proof in this behalf shall be on the party who asserts that the Civil court''s jurisdiction is ousted. (see Sahebgouda v. Ogeppa). Even otherwise, the Civil Court''s jurisdiction is not completely ousted under the Companies Act, 1956.�
In the present case there is statutory provision of appeal and the appellate Court has got ample power to decide the present dispute.
In one another case reported in 2003 (VII) SCC 66, Dipak Chandra Ruhidas v. Chandan Kumar Sarkar, Supreme Court held that the power of appellate Court is much wider than power conferred to High Court or Supreme Court and the Appellate Authority has got wide power to go into interfere and discuss to decide the controversy in question.
For convenience para 15 of the said judgment of Dipak Chandra Ruhidas''s case (supra) is reproduced as under:
�Section 116A provides for an appeal. The said provision must be given a liberal and purposive construction. The scope of an appeal should be held to be wider than an application for judicial review or a petition under Article 136 of the Constitution of India.�
The Apex Court in another case reported in 2003 (V) SCC 395, Bimal N. Desai v. State of Karnataka and others, ruled that the alternative remedy of statutory appeal can not be bypassed for conditions like limitation, payment of court fee or deposit of some amount or fulfillment of some other conditions for entertaining the appeal.
For convenience para 13 of the said judgment is reproduced as under:
�It has been settled by a long catena of decisions that when a right or liability is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before seeking the discretionary remedy under Article 226 of Constitution. This rule of exhaustion of statutory remedies is not doubt a rule of policy, convenience and discretion land the Court may in exceptional cases issue a discretionary writ of certiorari. Where there is complete lack of jurisdiction for the officer or authority or tribunal to take action or there has been a contravention of fundamental rights or there has been aviolation of rules of natural justice or where the Tribunal acted under a provision of law, which is ultra vires, then notwithstanding the existence of an alternative remedy, the High Court can exercise its jurisdiction to grant relief. In the present case, the alternative remedy of challenging the judgment of the Court was not before some other forum or tribunal. On the contrary, by virtue of subsection (3) of Section 27 of the Act, the order passed by the Court amounted to a decree against which an appeal lay to the High Court. When the party had statutory remedy of assailing the order passed by the Court District Court by filing an appeal to the High Court itself he could not bypass the said remedy and take recourse to proceedings under Article 226 and 227 of the Constitution. Such a course of action may enable a litigant to defeat the provisions of the statute which may provide for certain conditions for filing the appeal like limitation, payment of court fee or deposit of some amount or fulfillment of some other conditions for entertaining the appeal.�
Again, the Apex Court in a case reported in 2003 (VII) SCC 410, National Highway Authority of India v. Ganga Enterprises, held that the contractual matters should not be agitated in a proceedings under Article 226 of Constitution of India. The relevant portion of the said judgment is reproduced as under:
����It is settled law that disputes relating to contracts cannot be agitated under Article 226 of Constitution of India. It has been so held in the cases of Kerala SEB v. Kurien E. Kalathil, State of U.P. v. Bridge & Roof Co. (India) Ltd. and Bareilly Development Authority v. Ajai Pal Singh. His is settled law. The dispute in this case was regarding the terms of offer. They were thus contractual disputes in respect of which a writ Court was not the proper forum.�
In the case of Minor Irrigation Rural Engineering Services and others v. Sahngoo Ram Arya and another, reported in 2002 (5) SCC 521, Apex Court of the country held that the alternative remedy of tribunal cannot be bypassed on the ground tht Tribunal lacks power to pass interim order. Relevant portion of the case of Sahngoo Ram (supra) is reproduced as under:
�Mr Sunil Gupta, learned counsel appearing for the petitioner contended that the remedy before the Tribunal under the U.P. Public Services (Tribunal) Act is wholly illusory inasmuch as the Tribunal has no power to grant an interim order. Therefore, he contends that the High Court ought not to have relegated the petitioner to a fresh proceeding before the said Tribunal. We do not agree with these arguments of the learned counsel. When the statute has provided for the constitution of a Tribunal for adjudicating the disputes of a government servant, the fact that the Tribunal has no authority to grant an interim order is no ground to bypass the said Tribunal. In as appropriate case after entertaining the petitions by an aggrieved party if the Tribunal declines an interim order on the ground that it has no such power then it is possible that such aggrieved party can seek remedy under Article 226 of the Constitution but that is no ground to bypass the said Tribunal in the first instate itself.�
While giving emphasis to avail the statutory remedy before filing a writ petition, Supreme Court in a case reported in 2001 (10) SCC 617, Union of India and others v. Ingersoll Rand (India) Ltd., held that the alternative statutory remedy should not be bypassed by filing a writ petition for the redressal of grievances. The relevant portion of the said judgment is reproduced as under:
�By the impugned judgments the Karnataka High Court has allowed the writ petitions filed by the respondents and has directed the appellants to refund the amount of excise duty paid by the respondents without requiring the respondents to pursue the remedy available under the statutory provisions governing the refund of the duty paid. The matter is covered by the decision of the larger Bench of this Court in Mafatlal Industries Ltd. v. Union of India wherein this Court has laid down that the High Court in exercise of its power under Article 226 of Constitution cannot give direction for refund in disregard of the provisions contained in the Central Excises and Salt Act.�
Under the above facts and circumstances, even for the part of cause of action arisen in pursuance to the award of Motor Accident Claims Tribunal, a statutory appeal shall lie under Section 173 of the Motor Vehicle Act. The Appellate Court while exercising jurisdiction has got power to interfere with the award on a ground, even if, it does not relate to the amount of compensation awarded by the Motor Accident Claims Tribunal. The Appellate Court has got power to grant relief claimed by the petitioner in the present writ petition by moulding the relief granted by the learned Motor Accident Claims Tribunal. The power of the appellate Court under Section 173 of the Motor Vehicle Act is wider than the power of this Court under Article 226/227 of the Constitution of India, as discussed herein above.
Accordingly, under the above facts and circumstances, the petitioner has got alternative and efficacious remedy under Section 173 of the Motor Vehicle Act to ventilate his grievance against the impugned award. The appellate Court has got ample power to deal with the present controversy.
Under the above facts and circumstances, the writ petition is not maintainable on account of availability of alternative statutory remedy under Section 173 of the Motor Vehicle Act. The writ petition is dismissed on account of availability of alternative remedy. It shall be open to the petitioner to prefer an appeal under Section 173 of the Act, if he desires to do so. Writ petition is dismissed accordingly. No order as to costs.
(Petition dismissed)