^^^^-. ^ © HIGH COURT OF CHHATTISGARH AT BSLASPUR 'A CIVSL REVISION N0.14 OF20&9 APPLICANT Reiiance ©eneral Snsurance Company {fmited, Through Branch Manager, Ravi Bhawan, G.E. Road; Raipur, Tahsll & Distt. Raipur (C.G.) Versus NON-APPLICANTS 1. Smt. Anjani Namdeo W/o Late Durga Namdeo, aged about 48 years 2. Ravindra Nath S/o Late Durga Namdeo, aged about 28 years 3. Dinesh S/o Late Durga Namdeo. aged about 25 years 4. Jeetendra S/o Late Durga Namdeo, aged about 23 years 5. Ku. Bharti D/o Late Durga Namdeo, aged about 21 years AII R/o Ward No.13, Purani Sasti, P.S. & Tahsil Mahasamund (C.G.) [CLAIMANTS] 6. Ashwanl Kumar Verma S/o Laxraan Prasad Verma, R/o VIII. Kukradih, PS Tumgaon, Mahasamund (C.G.) [OWNER & DRIVER] CSVIL REVSSSON UNDER SECTSON 115 OF THE CODE OF CIVIL PROCEDURE, 1908 (Sinaie Bench: Hon'ble SVIr. N.K. Aaarwai. J.l Present ;Shri Sachin Singh Rajput, counset for the appticant ORAL ORDER (Passed on 23rd day of March, 2010) Feeling aggrieved by the award dated 01-11-2CX38 passed by Chief Motor Accjdent Cialms Tribunal, Mahasamund (for short 'the Tribunat) in Claim Case No.95/2008 whereby and whereunder an amount of Rs.12,74,176/- has been awarded and Siabllity has been fastened upon the applicanb'lnsurance Company along with interest 6% per annum from the date of applicatton till ite payment. the instant revision has been fiied. 2. Facts briefly stated are as under: The appiicant/insurance Company feeling aggrieved by the quantum of the award has filed this revisjon. Admittedly, the award is appeilable under Section 173 of the Motor Vehicles Act, 1988 (for short 'the Act'). This is aiso not in dispute that permjssion under Section 170 of the Act has not been obtained by the applicant herein so as to contest the case, upon the grounds which are avaitable to the owner/driver of the vehicle. 3. As per Shri Rajput, iearned counsei appearing for the appiicanyinsurance Company, the revlsion has been rightiy preferred by the applicant in the light of judgment of Apex Court in case of Sadhna Lodh v. National insurance Co. Ltd. and anotiher, reported in (2003) 3 SCC 524, wherein it has been heid that since the revision has not been expressly barred by the statute and therefore, the appiicant/lnsurance Company can seek Its remedy by fiiing a revision. 4. I have heard iearned counsel for the applicant and perused the impugned award. 5. The core question arises for decision making in the instant revision is that "whether or not the appiicant can seek its remedy by way of revision although the remedy of appeal is available?" 6. Para 6 of the judgment of the Supreme Court in the case of Sadhna Lodh (Supra), upon which iearned counsei for the applicant has piaced its reiiance, which reads as under: "6. The right of appeal is a statutory right and where the Jaw providss remedy by fsSlRg an appeat on limited grounds, the grounds of chalienge cannot be enlarged by filing a petition a petition under Articles 226/227 of ,- the Constitution on the prernise that the insurer has 'ljmited grounds avaiiable for chailenging the award given by the Tribuna!. Section 149(2) of ths Act limits the insurer to fiie an appeai on ihose enumerated grounds and the appeal being a product of the statute it is not open to an insurer to take any piea other than e53"""^ >-• ~"\ I ^^ those provided under Section 149(2) of the Act (see Nationaf Insurance Co. Ltd. v. Nicdletta Rohtagi). This being the legat position, the petition fiEed under Article 227 of the Constitution by the insurer was wholly misconceived. Where a statuiory right to fiie an appeal has been provided for, it is not open to the High Court to entertasn a petition under Articie 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy avaiiabie to the aggrieved person is to fiie a revision before the High Court undsr Section 115 ofths Code of Civs! Procedure. Where remedy for filing a revision before the High Court under Section 115 CPC has been expressiy barred by a State enactment, oniy in such case a petition ynder Article 227 of the Constitution would lie and not under Article 226 of the Constitution. As a matter of illustration, where a triaE court in a civil suit refused to grant temporary injunction and an appeat against refusal to grant injunction has been rejected, and a State enactment has barrecS the remedy of fijjng revision under Section 115 CPC, in such a situation a writ petstion under Articie 227 wouid IJe and not under Article 226 of the Constitution. Thus, where the State Legislature has barred a remedy of fiiing a revision petition before the High Court under Section 115 CPC, no petition under Article 226 of the Constitution would Ije for the reason that a mere wrong decision without anything more is not enough to attractjurisdiction ofthe High Court under Articie 226 of the Constitution." 7. A bare reading of the aforesaid paragraph of the judgment would reveai that Hon'ble Supreme Court has observed that in case where a remedy by way of appeal has not been provided against the judgment of District Judge, the remedy available to the aggrieved person is to fi!e a revision before the High Court under Section 115 of the Code of Civil Procedure unless expressly barred by State enactment. indisputably the award impugned is appetiable under Section 173 of the Act. Although in the absence of permission under Section 170 of the Act, the insurance company can only prefer appeal upon the grounds available to it under the provisions contained in Sec. 149(2) of the Act as In the absence of grant of permission under Section 170 of the Act, the insurance company is not entitled to fiie an appea! chaltenging the award on the ground which are other wise not availabte to the insurance company, as held by Supreme Court in the case of Natfonaf fnsuranee Co. Ltd; Chancffgarh v. Nicoltetta Rohtagi ancf others; reported tn (2002)7 SCC 456 in para 26 of its judgmentwhich reads thus: v^ Kvr "26. For the aforesaid reasons, an insurer if aggrieved against an award, may ^le an appeal onjy on those grounds and no other. However, by virtue of Section 170 of the 1988 Act, where in course of an enquiry the Ciaims TribunaJ is satisfied that (a) there is a codusion between the person making a cjaim and the person against whom the claim has been made, or (b) the person against whom the ciaim has been made has faited to contest the claim, the Tribunai may, for reasons to be recorded in writing, implead the insurer and in that case it is permissible for the insurer to contest the claim also on the grounds which are avaiiable to the insured or to the person against whom the claim has been made. Thus, unless an order is passed by the TribunaJ permitting the insurer to avaii the grounds available to an insured or any other person against whom a c!aim has been made on being satisfied of the two conditions specified in Sectlon 170 of the Act, it is not permissible to the insurer to contest the claim on the grounds which are available to the insured or to a person against whom a claim has been made. Thus where conditions precedent embodied in Section 170 are satisfied and award is aciverse to the mterest of the insurer, the jnsurer has a right to fite an appeal challenging the quantum of compensation or negligence or contributory negiigence of the offending vehicle even if the insured has not. filed any appeal against the quantum of compensation. Sections 149, 170 and 173 are part of one scheme and if we give any different interpretation to Sectton 173 of the 1988 Act, the same wouid go contrary to the scheme and object oftheAct." 8. in view of the above, since the remedy of statutory appeal is avaiiable to the appiicant of course in absence of grant of permission under Section 170 of the Act only on the grounds which are available under Section 149(2) of the Act, therefore, this revision is without jurisdiction. The remedy of appea! and revision are not alternative remedies which the applicant can pick and chose amongst them but the remedy of revision is only available when the remedy of appeai is not provided under the statute. 9. In view of the above, in the considered opinion of this Court, this revisjon being without jurisdiction is liable to be dismissed and js hereby dismissed. However, it is made ciear that the applicant is free to pursue its remedy by filing a legaliy constituted appea! if so advised. Sd/- N. K. Agarwal Judge