IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 140 of 2011 Date of decision: 29.9.2011 Gurcharan Singh …Petitioner. Versus United India Insurance Company …Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting? Yes. For the petitioners: Mr. Virender Rathour, Advocate. For the respondent: Mr. Ashwani K. Sharma, Advocate. _____________________________________________________ Deepak Gupta, J(oral) 1. This case is a classic example of a situation where parties are left in the lurch, not knowing what is the exact order of the Court because of the failure of the Presiding Officer to perform his duty in a proper and judicious manner. 2. This petition under Article 227 of the Constitution of India arises out of execution proceedings, which in turn arise out of an award passed by the Motor Accident Claims Tribunal (Fast Track Court), Kangra at Dharamshala dated 11.1.2006. It appears that one of the objections raised by the Insurance Company was that the driver did not have a valid 2 driving licence since the vehicle in question was a transport vehicle being a Maxi Cab and the licence which entitled him to drive a light motor vehicle did not bear an endorsement entitling him to drive a transport vehicle. 3. The manner in which this issue was dealt with leaves much to be desired. In para-18 of the award, the learned Tribunal observed as follows:- “8.xxxxxx The insurance policy is placed on the file as Ex. RW1/B thus the terms and conditions of the insurance which was effective with effect from 7th Dec. 2000 to 6th Dec. 2001 has in no way been violated.” It is not clear whether the Tribunal was at this stage quoting the arguments made on behalf of the driver or was making its own observations, but it appears that probably it was quoting the arguments made on behalf of the driver. I say this because in para-19 the learned Tribunal then went on to deal with the question as to whether the “driving licence is concerned that it was not carrying any endorsement regarding passengers”. To say the least, this sentence makes no sense, but apparently what the Tribunal was trying to convey was that the driving licence did not authorize the driver to drive a transport vehicle, as it did not bear an endorsement entitling him to 3 drive a transport vehicle. The Tribunal went on to hold as follows:- “Thus, I feel that no doubt Maxi Cab was being plied without endorsement of the passenger vehicle on D.L. where as at the time of accident passenger vehicle was being plied by respondent No.1. At the same time no other cause is responsible for the accident like mechanical defect or similar other cause having no concern with the driver not possessing requisite type of licence insurer would be at liberty to recover the amount later on. Thus this issue is decided by holding that vehicle was being plied by the respondent No.1 in violation of the terms and conditions of the Insurance Policy, however, the award has to be satisfied at first by insurer respondent no.3 and the issue is decided accordingly.” 4. Thereafter the Tribunal in the operative portion held as follows:- “23. The respondent No.1 United India Insurance Co. Ltd. is held liable to pay the compensation amount.” 5. As pointed out by Shri Ashwani Sharma, learned counsel for the Insurance Company, a perusal of para-19 quoted hereinabove, would indicate that the learned Tribunal came to the conclusion that there is violation of the driving licence and he in fact held that the vehicle was being plied by respondent No.1 in violation of the terms and conditions of the 4 Insurance Policy, however, the award had first to be satisfied by the insurer respondent No.3. Shri Ashwani Sharma, learned counsel for the Insurance Company, on the basis of this, contends that the intention behind the award appeared to be that first the Insurance Company would satisfy the award and thereafter it could recover the same from the insured. 6. On the other hand, Shri Virender Rathour, learned counsel for the insured, submits that the award is not at all clear and in no portion of the award has it been clearly stated that the Insurance Company will have the right to recover the amount from the insured. He has placed reliance on the concluding portion of the award in para-23, wherein the Insurance Company was held liable to pay compensation without any qualification. He therefore, submits that a literal reading of the award only shows that it would be the Insurance Company alone which had to satisfy the award. 7. In a sense both the counsel are right and this is because of the fact that the award lacked clarity. The learned Tribunal despite making certain observations did not carry them to their logical conclusion. He, no doubt, indicated that the Insurance Company should satisfy the award first, which would give the impression that the Insurance Company could 5 thereafter recover the amount from the insured, but in fact gave no such directions. 8. Section 168 of the Motor Vehicles Act provides that while making an award the 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. A duty is cast upon the Tribunal, in terms of Section 168(1) of the Act, not only to specify the persons to whom the awarded compensation is to be paid, but it must also specify what the amount of compensation is to be paid. Thereafter a duty is cast upon the Tribunal to also clearly state whether the amount is to be paid by the insurer or owner or driver or by all of them or by each one of them and if so it must specify what is the amount to be paid by them. 9. My attention has been drawn by Shri Ashwani Sharma, Advocate to a judgment of the Apex Court delivered in Lakshmi Ram Bhuyan v. Hari Prasad Bhuyan, (2003) 1 SCC 197. I can do no better but to quote this judgment which lays down how a decision of the Court should be rendered:- “3. An inadvertent error emanating from non- adherence to rules of procedure prolongs the life of litigation and gives rise to avoidable complexities. The present one is a typical example wherein a stitch in time would have saved nine. 6 10. Certain provisions of the Code of Civil Procedure, 1908 may be noticed. Order VII Rule 1 CPC requires the plaintiff to give sufficient particulars of the relief, which the plaintiff claims. Order XX requires a judgment to contain all the issues and findings or decision thereon with the reasons therefor. The judgment has to state the relief allowed to a party. The preparation of decree follows the judgment. The decree shall agree with the judgment. The decree shall contain, inter alia, particulars of the claim and shall specify clearly the relief granted or other determination of the suit. The decree shall also state the amount of costs incurred in the suit and by whom or out of what property and in what proportions such costs are to be paid. Rule 9 to 19 of Order XX are illustrative of contents of decrees in certain specified categories of suits. The very obligation cast by the Code that the decree shall agree with the judgment spells out an obligation on the part of the author of the judgment to clearly indicate the relief or reliefs to which a party, in his pinion, has been found entitled to enable decree being framed in such a manner that it agrees with the judgment and specifies clearly the relief granted or other determination of the suit. The operative part of the judgment should be so clear and precise that in the event of an objection being laid, it should not be difficult to find out by a bare reading of the judgment and decree whether the latter agrees with the former and is in conformity therewith. A self-contained decree drawn up in conformity with the judgment would exclude objections and complexities arising at the state of execution. 11. The obligation is cast not only on the trial court but also on the appellate court. In the event 7 of the suit having been decreed by the trial court if the appellate court interferes with the judgment of the trial court, the judgment of the appellate court should precisely and specifically set out the reliefs granted and the modifications, if any, made in the original decree explicitly and with particularity and precision. Order XLI Rule 31 CPC casts an obligation on the author of the appellate judgment to state the points for determination, the decision thereon, the reasons for the decision and when the decree appealed from is reversed or varied, the relief to which the appellate is entitled. If the suit was dismissed by the trial court and in appeal the decree of dismissal is reversed, the operative part of the judgment should be so precise and clear as it would have been if the suit was decreed by the trial court to enable a self-contained decree being drawn up in conformity therewith. The plaintiff, being dominus litus, enjoys a free hand in couching the relief clause in the matter he pleases and cases are not wanting where the plaintiff makes full use of the liberty given to him. It is for the court, decreeing the suit, to examine the reliefs and then construct the operative part of the judgment in such manner as to bring the reliefs granted in conformity with the findings arrived at on different issues and also the admitted facts. The trial court merely observing in the operative part of the judgment that the suit is decreed or an appellate court disposing of an appeal against dismissal of suit observing the appeal is allowed, and then staying short at that, without specifying the reliefs to which the successful party has been found entitled tantamounts to failure on the part of the author of the judgment to discharge 8 obligation cast on the Judge by the provisions of the Code of Civil Procedure.” 10. A bare perusal of the aforesaid observations of the Apex Court makes it clear that any Judge or Presiding Officer adjudicating upon a matter should in clear and unambiguous terms decides what is the relief being granted by it. He should not leave the parties in a quandary as to whether the case has been decided in its favour or not. The judgment should be clear, certain and unambiguous. The Judge should clearly set out what is the relief granted by him and what relief has been denied by him. If this is done, then there will be hardly any cases where confusion would arise at the execution stage or in the contempt proceedings. This would also avoid multiplicity of litigation. 11. Shri Ashwani Sharma, learned counsel for the Insurance Company, has also made a reference to Latin maxim Actus Curiae Neminem Gravabit which means an act of court shall prejudice no one. If a Court makes a mistake or an error, it should not prejudice any party. The reason is simple. Why should any party suffer if a mistake is made by the Court while delivering its order or judgment? The Apex Court in its judgment has also held that if there is some ambiguity in the judgment, then the remedy 9 of the party lies in approaching the Court which passed the order or judgment under Section 152 CPC. 12. Coming to the case in hand, as has already been indicated by me above, both the insured as well as insurer were justified in not filing appeals because they both giving their own interpretations to the award, believed that they were not aggrieved by the same. The insured rightly assumed that though he had been held guilty of violation he had not been ordered to pay any compensation and the Insurance Company was also not wrong in assuming because the Court had indicated that the Insurance Company should satisfy the award first, it had a right to recover the amount from the insured. Neither party filed an appeal nor did any party approach the Tribunal itself for clarification of the order. 13. The learned executing Court in execution proceedings held that the Insurance Company had a right to recover the amount from the insured and at this stage the insured has filed the present petition under Article 227 of the Constitution of India. This Court under Article 227 is duty bound to ensure that rule of law is maintained and the judicial process is taken to its rightful conclusion. No party should suffer for the mistake of the Court. Normally, in 10 execution proceedings the Court cannot go behind the decree or award. This is a well settled principle of law. However, I am of the considered opinion that in cases like the present one, where the award is totally ambiguous and two or more interpretations can be drawn from the award because of the fact that it lacks clarity, even if the executing Court cannot go into the matter, this Court in exercise of jurisdiction under Article 227 would be failing in its duty if it does not ensure that justice is done in accordance with law laid by the Apex Court. 14. Article 142 of the Constitution of India lays down that the law declared by the Supreme Court shall be binding on all courts within the territory of India. As observed earlier once a judgment or decree obtained finality, normally in execution proceedings or collateral proceeding even if the judgment or decree is wrong, the same cannot be interfered with. However, in the present case we are dealing with a case where the award was ambiguous and unclear. The question before the Tribunal was whether the driver held a valid driving licence or not. The Apex Court in National Insurance Company Ltd. V. Annappa Irappa Nesria and others, (2008)3 SCC 464 held that w.e.f. 28.3.2001 the endorsement to drive a transport vehicle is necessary but prior to that date 11 such endorsement was not necessary since a light motor vehicle in its definition as it existed prior to said date included a light transport vehicle. It is thus obvious that such endorsement is required only after 28.3.2001. 15. The accident in the present case took place prior to 28.3.2001 and therefore, I am of the view that the Insurance Company cannot be held entitled to recover the amount from the insured. It is made clear that the present judgment has been passed in the peculiar facts and circumstances of this case wherein the award was totally unclear and ambiguous and shall not be treated as prejudice in other matters. Accordingly, the petition is allowed. No costs. September 29, 2011 (Deepak Gupta) (vt) Judge