IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.633/2003 Decided on.12.9.2007 Dinesh Kumar. …Petitioner. Versus Balbir Singh and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the petitioner : Mr. K.D. Batish, Advocate. For the respondents Mr. R.S. Kanwar, Advocate for respondents No.1 and 2. Mr. B.M. Chauhan, Advocate for respondent No.3 Rajiv Sharma, J. A challenge has been laid to the order dated 19.4.2003 passed by the Permanent Lok Adalat, Kangra at Dharamshala in MACP No. 10- G/2002. The brief facts necessary for the adjudication of this petition are that the petitioner was driving his tempo bearing No. HP-20-5587 on 13.11.2001 and was proceeding from Kaloha to Pragpur. Bus bearing registration No. HP-55-3486 (M/s Sayal Bus Service) came from Pragpur side and dashed against the tempo resulting in grievous injuries to the petitioner. The accident took place around 10.30 A.M. He was firstly taken to hospital at Dehra (District Kangra) and thereafter underwent treatment in Bharaj Nursing Home, Jallandhar Road, Hoshiarpur. He remained indoor patient in Bharaj Nursing Home with effect from 13.11.2001 to 17.11.2001 and also underwent surgical operation costing 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 Rs. 80,000/-. He filed a petition before the Motor Accident Claims Tribunal-1, Kangra at Dharamshala in the month of January, 2002 claiming the compensation for the grievous injuries received in the accident resulting in fracture of right Tibia and many other injuries. He had claimed in all Rs. 3 lakhs towards compensation. Respondents No.1 and 2 had filed detailed reply to the claim petition and had admitted that the bus was insured with New India Insurance Company Limited, Branch Office Dev Pal Chowk, Hamirpur i.e. respondent No.3. The respondent No.3 had also filed separate reply and in preliminary objection it has denied that the bus bearing No. HP-55-3486 was insured with it. The objection was also taken with regard to the validity of the driving licence of the petitioner besides the objections of invalid certificate of registration. The learned Motor Accident Claims Tribunal issued notices to the respondents on 28.2.2002. The Motor Accident Claims Tribunal, Kangra at Dharamshala has passed the following order on 19.2.2003: “19.2.2003: Present: Sh. K.C. Sharma, Counsel for the applicant. Sh. M.G. Thakur, counsel for the respondents No.1 and 2. Ms. Sangeeta Guatam, counsel for the respondent No.3. Reply filed and copies supplied. Counsel for the parties made oral submissions that this case be placed before the Lok Adalat as there is every likelihood of compromise. Heard. Allowed. Be placed before the Lok Adalat on 21.3..2003 Sd/- Motor Accident Claims Tribunal (II) Kangra at Dharamshala.” The matter was thereafter listed on 21.3.2003 before the Permanent Lok Adalat at Dharamshala. Order dated 21.3.2003 reads thus: “21.3.2003: Present: Sh. K.C. Sharma, Adv. Counsel for the applicant. 3 Sh. M.G. Thakur, counsel for the respondents No.1 and 2. Ms. Sangeeta Guatam, counsel for the respondent No.3. Further time sought for conciliation. Allowed. Be listed before next Lok Adalat on 19.4.2003, when parties to appear in person. Sd/- Sd/- Judge Member Permanent Lok Adalat Permanent Lok Adalat Dharamshala.” Dharamshala The matter thereafter came up before the Permanent Lok Adalat at Dharamshala on 19.4.2003 and the following order was passed: “19.4.2003: Present: Sh. K.C. Sharma,Adv. Ld. Counsel for the petitioner. Sh. M.G.Thakur, Adv.ld counsel for the respondents No.1 & 2. Sh. Santosh Kumar, Divisional Manager of Insurance Company- respondent No.3 in person. Ms. Sangeeta Gautam counsel for respondent No.3. Case taken up for conciliation and finally conciliation effected. Statement of Shri K.C. Sharma, ld. counsel for the petitioner as well as of Sh. Santosh Kumar, Divisional Manager of Insurance Company recorded. In view of the statement of the parties, the petition is allowed and a sum of Rs. 10,000/- (Rupees ten thousand only) is awarded as compensation in full and final settlement of the claim petition, in favour of the petitioner and against respondent No.3, who shall deposit this amount within 45 days from today failing which, shall be liable to pay interest at the rate of 9% per annum from today, till realization thereof. File, after due completion be consided to record room. Announced: 19.4.2003. Sd/- Sd/- Judge Member Permanent Lok Adalat Permanent Lok Adalat Dharamshala.” Dharamshala The order dated 19.4.2003 was passed on the basis of the statement of Sh. Santosh Kumar, Divisional Manager, New India Insurance Company dated 19.4.2003 whereby he had agreed to settle the 4 claim for a sum of Rs. 10,000/-. The statement of Sh. K.C. Sharma, Advocate learned counsel appearing for the claimant was also recorded on the same day i.e. 19.4.2003. He had stated that he had the necessary instructions as per the conditions enumerated in power of attorney and he had agreed to compromise the matter on the basis of the statement of Sh. Santosh Kumar, Divisional Manager dated 19th April, 2003. It is in these circumstances that the order dated 19th April, 2003 was passed. Mr. K.D. Batish, Advocate had strenuously argued that the order dated 19th April, 2003 is not sustainable in the eyes of law and he further contended that the matter could not be sent to the Permanent Lok Adalat, Kangra at Dharamshala on 19th April, 2003 since according to him only those matters could be adjudicated upon by the Permanent Lok Adalat before the dispute is brought before any court. He elaborated his submission by stating that since the parties had approached the learned Motor Accident Claims Tribunal, Kangra at Dharamshala, the matter could not be referred to the Permanent Lok Adalat. Mr. Batish also contended that as per order dated 21.3.2003, parties were directed to be present in person as is evident from the record. He further submitted that on 19.4.2003, the parties were not present and his client had not authorized Mr. K.C. Sharma, Advocate to compromise the matter. Alternatively he had submitted that the Permanent Lok Adalat has not even taken into consideration the parameters laid down under section 22-D of the Legal Services Authorities Act, 1987. Mr. B.M. Chauhan, Advocate had supported the order dated 19.4.2003. He had also contended that once the matter has been compromised and settled by the Permanent Lok Adalat in view of section 22 (E) of the Legal Services Authorities Act, 1987 this Court has no jurisdiction to entertain and adjudicate upon the present petition. 5 I have heard the learned counsel for the parties and perused the record very carefully. Before the rival submissions of the learned counsel for the parties are taken into consideration, it will be apt to refer to certain salient provisions of the Legal Services Authorities Act, 1987 (hereinafter referred to as the Act for brevity sake). The Act has been enacted to constitute Legal Services Authorities to provide free and competent legal services to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities, and to organize Lok Adalats to secure that the operation of the legal system promotes justice on a basis of equal opportunity. Section 2 (d) being a dictionary clause defines expression “Lok Adalat” to mean a Lok Adalat organized under Chapter VI. Chapter VI of the Act deals with Lok Adalats. Sub section (5) of section 19 provides that Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or settlement between the parties to a dispute in respect of (i) any case pending before; or (ii) any matter which is falling within the jurisdiction of and is not brought before, any court for which the Lok Adalat is organized. Section 20 postulates the cases of which the Lok Adalat can take cognizance. Section 20 in its entirety reads thus: “20. Cognizance of cases by Lok Adalats: (1) Where in any case referred to in clause (i) of sub-section (5) of section 19,- i.(a) the parties thereof agree; or (b) one of the parties thereof makes an application to the court; for referring the case to the Lok Adalat for settlement and if such court is prima facie satisfied that there are chances of such settlement; or 6 ii. the court is satisfied that the matter is an appropriate one to be taken cognizance of by the Lok Adalat; the court shall refer the case to the Lok Adalat: Provided that no case shall be referred to the Lok Adalat under sub-clause (b) of clause (i) or clause (ii) by such court except after giving a reasonable opportunity of being heard to the parties. (2) Notwithstanding anything contained in any other law for the time being in force, the Authority or Committee organizing the Lok Adalat under sub-section (1) of section 19 may, on receipt of any application from any one of the parties to any matter referred to in clause (ii) of sub-section (5) of section 19 that such matter needs to be determined by a Lok Adalat, refer such matter to the Lok Adalat, for determination: Provided that no matter shall be referred to the Lok Adalat except after giving a reasonable opportunity of being heard to the other party. (3) Whether any case is referred to a Lok Adalat under sub- section (1) or where a reference has been made to it under sub-section (2), the Lok Adalat shall proceed to dispose of the case or matter and arrive at a compromise or settlement between the parties. (4) Every Lok Adalat shall, while determining any reference before it under this Act, act with utmost expedition to arrive at a compromise or settlement between the parties and shall be guided by the principles of justice, equity, fair play and other legal principles. (5) Where no award is made by the Lok Adalat on the ground that no compromise or settlement could be arrived at between the parties, the record of the case shall be returned by it to the court, from which the reference has been received under sub-section (1) for disposal in accordance with law. (6) Where no award is made by the Lok Adalat on the ground that no compromise or settlement could be arrived at between the parties, in a matter referred to in 7 sub-section (2), that Lok Adalat shall advise the parties to seek remedy in a court. (7) Where the record of the case is returned under sub- section (5) to the court, such court shall proceed to deal with such case from the stage which was reached before such reference under sub-section (1).” Section 21 provides that every award of the Lok Adalat shall be deemed to be a decree of a civil court, or as the case may be, an order of any other court and where a compromise or settlement has been arrived at, by a Lok Adalat in a case referred to it under sub-section (1) of section 20, the court fee paid in such case shall be refunded in the manner provided under the Court Fees Act. It is further stipulated under sub- section (2) of Section 21 that every award made by a Lok Adalat shall be final and binding on all the parties to the dispute, and no appeal shall lie to any court against the award. Section 22 enumerates the powers of the Lok Adalat. Section 22 (A) provides that for the purposes of sections 22 and 23, “Permanent Lok Adalat” means a Permanent Lok Adalat established under sub-section (1) of Section 22 (B). Section 22 (B) provides for the establishment of Permanent Lok Adalats. Section 22 (C) provides the mechanism for Permanent Lok Adalats to take cognizance. Procedure of Permanent Lok Adalat has been provided under section 22 (D) and award of Permanent Lok Adalat is to be treated final under section 22 (E). Section 22 deals with powers of Lok Adalat. The combined reading of the provisions contained in Chapter-VI and Chapter VI-A makes it clear that there are two types of Lok Adalats (i) Lok Adalat as defined under sub section (d) of section 2 which means Lok Adalat organized under Chapter VI and Permanent Lok Adalat as defined under sub clause (a) of section 22 (A) to mean a “Permanent Lok Adalat” 8 established under sub-section (1) of Section 22 (B). Section 19 provides that every State Authority or District Authority or the Supreme Court Legal Services Committee or every High Court Legal Services Committee or, as the case may be, Taluk Legal Services Committee may organize Lok Adalats at such intervals and places and for exercising such jurisdiction and for such areas as it thinks fit and the Lok Adalat shall have the jurisdiction to determine and arrive at a compromise or settlement between the parties to a dispute in respect of any case pending before or any mater which is falling within the jurisdiction of and is not brought before any court for which the Lok Adalat is organized. Section 20 in clear terms provides that where the parties agree or one of the parties makes an application to the Court for referring the case to the Lok Adalat for settlement and if such court is prima facie satisfied that there are chances of settlement and the Court is satisfied that the matter is an appropriate one to be taken cognizance by the Lok Adalat. The award made by the Lok Adalat organized as per section 19 has been made final and binding on all the parties to the dispute and no appeal has been provided to any court against the award. Chapter VI-A provides for pre-litigation conciliation and settlement. The establishment of Permanent Lok Adalat is different from organization of Lok Adalat as per section 19. As far as cognizance of matters to be taken by Permanent Lok Adalat is concerned, any party to dispute may before the dispute is brought before any court, make an application to the Permanent Lok Adalat for the settlement of dispute. The procedure for Permanent Lok Adalat is different from the other Lok Adalat organized under section 19. It is evident from the language employed in section 20 as far as the Lok Adalats are concerned that after the receipt of the reference before it, it has to act with utmost expedition to arrive at a compromise or settlement 9 between the parties and where no award is made by the Lok Adalat on the ground that no compromise or settlement could be arrived at between the parties, the record of the case shall be returned by it to the court from which the reference has been received and thereafter the court to whom the record has been returned has to proceed to deal with such case from the stage which was reached before such reference was made to the Lok Adalat. The Permanent Lok Adalat after the receipt of the application is required to direct the party to file before it a written statement, stating therein the facts and nature of the dispute under the application and the points or issues in such dispute and grounds relied in support of, or in opposition to, such points or issues, as the case may be. The applicant can supplement such statement with any document and other evidence. The other parties are required to be permitted to file reply to the statement of claim preferred by the applicant. Thereafter the Permanent Lok Adalat has to conduct conciliation proceedings between the parties and it is the duty cast upon the other party to the application to cooperate in good faith with the Permanent Lok Adalat in conciliation of the dispute relating to the application. The Permanent Lok Adalat if it is of the opinion that there exists element of settlement it may formulate the terms of a possible settlement of the dispute and give to the parties concerned for their observations and in case the parties reach at an agreement on the settlement of dispute, they shall sign the settlement agreement and the Permanent Lok Adalat shall pass an award in terms thereof. If during the course of proceedings before the Permanent Lok Adalat, the parties fail to reach an agreement, the dispute is to be adjudicated upon by the Permanent Lok Adalat, if the dispute does not relate to any offence. Thus 10 it is evident that the procedure to be adopted by the Lok Adalat and Permanent Lok Adalat is different. It is evident from the order dated 19th February, 2003 that the parties have agreed to get the matter placed before the Lok Adalat as there was likelihood of compromise. Vide order dated 21st March, 2003, further time was sought for conciliation which was allowed and the matter was directed to be listed before the next Lok Adalat to be held on 19th April, 2003 when the parties were to remain present in person. The order dated 19th April, 2003 has been passed by the Permanent Lok Adalat, Kangra at Dharamshala. The Permanent Lok Adalat, Kangra at Dharamshala as per section 22 (C) could only take the cognizance of the matter if it was not pending before any other Court. In the present case, the matter was pending before the learned Motor Accident Claims Tribunal, Dharamshala and the same could only be referred to the Lok Adalat as per section 20 of the Act and same could not be referred to the Permanent Lok Adalat. Thus the order passed by the Permanent Lok Adalat, Dharamshala dated 19.4.2003 is without jurisdiction and liable to be set aside. Despite the finding recorded by this Court that the order passed by the Permanent Lok Adalat was without jurisdiction, it is desirable to see whether the procedure stipulated under section 22 (D) was followed by the Permanent Lok Adalat or not as a guiding principle for future litigation. It is evident from the order dated 21.3.2003 that the parties were directed to present in person before the Lok Adalat. The parties were not present before the Lok Adalat on 19th April, 2003 as is evident from the order, though; the claimant was represented by Sh. K.C. Sharma, Advocate. The case has been compromised on the basis of the statement made by Sh. Santosh Kumar, Divisional Manager of the New India Insurance 11 Company, Mandi. He had stated that he is ready to pay a sum of Rs. 10,000/- to the claimant. Mr. K.C. Sharma, Advocate on the basis of the conditions containing in power of attorney had agreed to compromise the matter for a paltry sum of Rs. 10,000/-. The Permanent Lok Adalat was required to see whether the compromise or settlement being arrived at was equitable more particularly when it was dealing with a case of victim who had suffered 15% disability being a driver. A sum of Rs. 10,000/- agreed to be paid by respondent No.3 was less than the amount even to be paid under no fault liability under section 140 of the Motor Vehicles Act, 1988. The duty was cast upon the Divisional Manager, who was the representative of the New India Insurance Company to ensure that just and fair compensation was offered to the victim. Respondent No.3 is a State within the provisions of Article 12 of the Constitution of India and this officer has to strive to ensure that the just compensation is paid to the victims. The very concept of organizing constitutional Lok Adalats will be frustrated if the compromise/settlements are arrived at causing immense hardships to the claimants. The idea of constitution of Lok Adalats is to give speedy justice and mitigate the hardships of the victims. The very important aspect which has been over looked by the Permanent Lok Adalat while striving for the compromise was that the victim was a driver who has received grievous injury resulting in fracture of right tibia. Though the claimant had suffered 15% disability, but the same has to be taken into consideration vis-à-vis his profession i.e. driving. A clerk or other professional where physical work is not required may discharge his duties efficiently even though his disability is around 15% but a driver who has suffered a fracture of right tibia, it will be difficult for him to drive a vehicle. The claimant had remained indoor patient and had incurred expenses of Rs. 80,000/- for treatment. He was out of employment for the days he 12 was convalescing. These aspects have also been over looked by the Permanent Lok Adalat. Mr. B.M. Chauhan, Advocate had argued that the compromise has been effected on the basis of statement made by the Advocate of the claimant whose statement was also recorded on 19.4.2003. This Court is of the opinion that the Advocate had no jurisdiction to make concession on question of law. The concession given on question of law, more particularly, when the jurisdiction of the Permanent Lok Adalat was involved will not be binding upon the claimant. Their Lordships of the Hon’ble Supreme Court in Union of India Versus Hira Lal and others, (1996) 10 SCC 574 have held that the concession made by the Government Advocate that the respondents were entitled to solatium, being a question of law, was held not binding on the appellant. Their Lordships have held as under: “We must mention that the concession made by the Government Advocate before the learned District Judge that the respondents are entitled to solatium and interest as provided in the Land Acquisition Act, 1894 (as amended in 1984) was a totally unwarranted concession. Being a concession on a question of law, it cannot be said to be binding upon the appellant. It is surprising how the Government Advocate could have made such a concession which is totally untenable in law and is prejudicial to the interests of the parties he was representing. We are equally of the opinion that this was not a matter in which the revision petition filed by the appellant should have been dismissed in limine by the High Court.” The Court is also required to look into a specific objection raised by Mr. B.M. Chauhan, Advocate with regard to the maintainability and adjudication of the writ petition by this Court in view of the language 13 employed in section 21 as well as section 22 (E) of the Legal Services Authorities Act, 1987. Their Lordships in Deokinandan Prasad Versus The State of Bihar and others, 1971 (2) SCC 330 have held that the bar against a civil court entertaining any suit relating to the matters under the Pension Act, does not stand in the way of issuance of writ of mandamus. Their Lordships have held as under: “Having due regard to the above decisions, we are of the opinion that the right of the petitioner to receive pension is property under Article 31 (1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also property under Article 19 (1) (f) and it is not saved by sub-article (5) of Article 19. Therefore, it follows that the order, dated June 12, 1968, denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19 (1) (f) and 31 (1) of the Constitution, and as such the writ petition under Article 32 is maintainable. It may be that under the Pension Act (Act 23 of 1871) there is a bar against a civil court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of a writ of mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law.” Their Lordships of the Hon’ble Supreme Court in Kihoto Hollohan Versus Zachillhu and others, 1992 Supp (2) SCC 651 has held that a finality clause in paragraph 6 of the 10th Schedule does not completely exclude the jurisdiction of the courts under Articles 136, 226 and 227 of the Constitution. Their Lordships have held as under: “In