',,, fJ9, IN THE HIGH COURT OF SIKKIM : GANGTOK CIVIL REVISION PETITION NO.4 0F 2009 THE BRANCH MANAGER, NEW INDIA ASSURANCE CO.LTD„ GANGTOK BRANCH OFFICER, M. G. MARG, GANGTOK, EAST SIKKIM Versus 1. SMT. MEENA DEVI, W/0 LATE DEV BAHADUR 2. SHRI OM BAHADUR, S/O LATE DEV BAHADUR 3. MS. HIMA KUMARI, D/O LATE DEV BAHADUR 4. MASTER PREM BAHADUR, S/O LATE DEV BAHADUR ALL RESIDENTS OF : N.H.P.C. STAFF QUARTERS, POWER HOUSE COLONY, TEESTA STAGE V. HYDRO ELECTRIC PROJECT, P.O. & P.S. SINGTAM, EAST SIKKIM. 5. THE GENERAL MANAGER, TEESTA STAGE V. HYDRO ELECTRIC PROJ ECT, NATIONAL HYDRO ELECTRIC POWER CORP. LTD., DIPUDARA, P.O. & P.S, SINGTAM, EAST SIKKIM. ....... Petitioner ....... Respondents FORTHE PETITIONER : FOR THE RESPONDENT NOS. 1, 2, 3 & 4 FOR THE RESPONDENT NO. 5. MR. SUDESH JOSHI, ADVOCATE WITH MS. MANITA PRADHAN, ADVOCATE. MR. AJAY RATHI, ADVOCATE WITH MS, SUSHMA PRADHAN, ADVOCATE MR. A. K. UPADHYAYA, SENIOR ADVOCATE WITH MR. DHURBA TEWARI AND MR. ASHIM CHETTRI, ADVOC.ATES.. \ .i .+>€ •1,i Q7 ch AND CIVIL REVISION PETITION NO,08 0F 2009 NEW INDIA ASSURANCE CO.LTD., THROUGH THE BRANCH MANAGER, GANGTOK BRANCH, P.O & P.S. GANGTOK, EAST SIKKIM ............ Petitioner Versus 1.SMT. KHEL LACHI MANGER, W/0 LT. KATHA KUMAR MANGER (THAPA) R/O LOWER KAMLING BUSTY, UNDER 32-SULDUNG KAMLING, GPU, P,O.RESHI & P.S. NAYA BAZAR, WEST SIKKIKM. MASTER SAROJ KUMAR THAPA, S/O LT. KATHA KUMAR MANGER (THAPA) R/o LowER KAMLING BUsrv, UNDER 32-SULDUNG KAMLING, GPU, P.O.RESHI & P.S. NAVABA:ZAIR, WEST SIKKIKM. MASTER SAWAN THAPA, S/O LT. KATHA KUMAR MANGER (THAPA) R/o LowER KAMLING Busrv, UNDER 32-SULDUNG KAMLING, GPU, P.O.RESHI & P.S. NAYA BAZAR, WEST SIKKIKM. 4. SHRI RIFZONG TARGAIN LEPCHA, S/O SHRI TARGAIN LEPCHA, R/O NAMCHI BAZAR, P.O. & P.S. NAMCHI, SOUTH SIKKIM. 5. SHRI KISHOR PRADHAN, S/O LATE S.C.PRADHAN, R/O LOWER KAMLING BUSTY, KAMLING, BONG BUSTY, AT PRESENT VOK SCHOOL, SOUTH SIKKIM ......... Respo'ndents 3 •'= lz FORTHE PETITIONER : MR. A. K. UPADHYAYA, SENIOR ADVOCATE WITH MR. ASHIM CHETTRI AND MR. DHURBA TEWARI, ADVOCATES. FOR THE RESPONDENT : NONE NOS. 1, 2 AND 3 FORTHE RESPONDENT : MR. D. R. THAPA, ADVOCATE NOS. 4 & 5 WITH MR. RAMESH SHARMA, ADVOCATE. PRESENT = THE HON'BLE MR[ JUSTICE S. P. WANGDI, JUDGE Date of last hearing : 08.12.2009 Date of J]udgment : 11.12.2009 JUDGMENT Wa'nad.I' I. These two Revision Petitions have been taken up together for djsposa[ by this common I.udgment as the question involved for adjudication in them are substantially the same. Civil Revision Petition No.04 of 2009. This Revision Petition is directed against the award of the Member, Motor Accident claims Tribunal, East and North Sikkim at Gangtok, dated 23.02.2007, by which the petitioner, New India Assurance Company Limited, Gangtok Branch through its Branch Manager, was made liable for payment of death compensation of Rs.16,31,460.00 (Rupees sixteen lakhs thirty one thousand four hundred and sixty), against the death of the victim, Dev Bahadur, the husband of the respondent no.1 and the father of the respondent nos.2, 3 and 4 respectively. E *~€ e €?5 2. 4 The undisputed facts of the case are that on 03.05.2004 at about 9.35 a,in. bus bearing registration No.SK- 04/3889 owned by the respondent no.5 in which the victim Dev Bahadur, S/o Lt. Man Bahadur was I:ravelling a.s its conductor met with an accident near Traffic Point, Singtam Bazar, PO & PS Singtam, East Sikkim, in which he was fatally injured and was declared dead when brought to the Singtam District Hospital. Joint claim petition under Sections 140 and 166 of the Motor Vehicles Act,1988 was filed by the respondent nos.1, 2, 3 and 4 before the Motor Accident claims Tribunal, East and North Sikkim at Gangtok, registered as M.A.C.T. Case No.23 of 2007, claiming compensation for the death caused to the victim, due to the aforesaid accident against the respondent no.5 as the owner of the accident bus and the petitioner, New India Assurance Company Limited, Gangtok Branch through its Branch Manager with which the bus had been insured. The Accident Claims Tribunal on completion of the due process under Section 166 of the Motor Vehicles Act, 1988, passed the impugned judgment awarding compensation of Rs.16,31,460.00 to be paid by the petitioner wit:h interest @ 10% per annum with effect from the date of the claim pet:ition to be paid within two months from the date of the judgment. In I:he revision petition, the only ground set up by the petitioner for assailing the impugned judgment was that the Tribunal had wrongly assessed the compensation under the schedule provided in the Motor Vehicles Act when it was quite .3>, I ..® i <J. 5 well established that: the victim was a workman under the respondent no.5 and had died during the course of his employment due to the accident of the vehicle belonging to the respondent no.5 which necessitated assessment of the quantum of compensation as per schedule IV prescribed under the Workmen's Compensation Act, 1923. On account of such erroneous assessment, the amount of compensation arrived at was exorbitantly high and therefore, the award called for being quashed and set aside. Apart from the above, the petitioner also sought to challenge the award of interest @10% as being on the higher side, in view of the prevailing rate of interest in commercial transactions by banks. It may be stated that the revision petition having been filed beyond the period prescribed under the law, an application for condonation of delay under Section 5 of the Limitation Act, 1963 was filed along with the revision petition. This was allowed by this Court vide order dated 23.07.2009 in Civil Misc. Application No.42 of 2009 and the revision petition was taken up for hearing on admission on 05.08,2009. On being admitted, arguments on behalf of the parties were finally heard on 08.12.2009. In the meanwhile, on 20.11.2009, upon hearing the parties, the points for consideration in the case were narrowed down to the following: - '`(i) Whether the delay in filing the Revision Petition can be condoned. (ii) Whether the Revision Pet:ition is maintainable. 9 6 (iii) Whether the defence of the Insurance Company can be allowed to be raised on the admitted position, that it: was neither raised in their written statement nor was it placed orally before the Tribunal. (iv) Subject to the finding on the above, whether the defence taken by the Insurance Company of its limited liability is valid in the eye of law. Of the above points, point no. (i) having been already decided by the order of this Court vide order dated 23.07.2009 in Civil Misc. Application No.42 of 2009 was abandoned accordingly and the case was heard on the remaining points which are dealt with hereunder. Before going into that it is of relevance to point out at this stage that at the time of arguments Mr. Sudesh Joshi, learned Counsel representing the petitioner while placing his case in his opening submissions on 22.9.2009, strongly stressed on the grounds set out in the revision petition and submitted that the award passed by t:he learned Tribunal making the petitioner entirely liable for payment of the compensation was erroneous on the face of the insurance policy under which the respondent no.5 was indemnified. It was submitted that as the respondent no.5 had paid Rs.25/- only as special premium to cover the liability that would be worked out under the Workman's Compensation Act, 1923 under Indian Motor Tariff (IMT) 40, it was erroneous on the part of the learned Tribunal to have fastened the entire liability of the compensation awarded in favour of respondent nos. 1 t:o 4. It was, therefore, 7 submitted that t:he impugned order of the learned Tribunal was liable to be modified to that extent. However, in complete contrast to the aforesaid stand, on 08,12.2009 when the hearing resumed, Mr. Sudesh Joshi submitted that the victim of the accident was not at all covered under the insurance policy for the reason that: - (a) (b) The victim was not engaged in driving the vehicle, i.e., the bus which met with the accident in the present case; and The bus which met with the accident causing the death of the victim was not a public service vehicle as provided under the proviso to sub- section 1 of Section 147 of the Motor Vehicles Act, 1988 although he was a conductor of that bus. As per him, having regard to the above facts, I:he claimants ought to have to have applied for compensation under the Workmen's Compensation Act, 1923. In support, strong reliance was placed by him upon 2007 f5j Sac 428 ; Ori-enfa/ Insurance Co. Ltd. Vs. Meena Variyal and Othersr more particularly paragraph 12 thereof. It is, therefore, to be seen as to which of the two propositions placed by Mr. Joshi would be applicable, or as to whether any of the two propositions would be applicable in the facts and circumstances of the case. I shall deal with those at a later point of time, but before that it is felt necessary to deal with the point nos. (ii) and (iii) indicated above since that would decide as to whether it would be at all necessary. to go into them. `T- Og? HB] Whether the Revision Petition is maintainable. In order to answer this question it would be essential to examine as to whether the claims Tribunal constituted under the Motor Vehicles Act is a court subordinate to the High Court as provided under Section 115 of the Civil Procedure Code, 1908. It is also to be seen as to whether the Claims Tribunal is a Civil Court within the meaning of Section 3 of the said Code. When we examine those questions in the light of the provisions of the M.otor Vehicles Act, 1988 one would arrive at an irresistible conclusion that the claims Tribunal under the Motor Vehicles Act, 1988 is not a Civil Court under Section 3 CPC and, therefore, not a subordinate court contemplated under Section 115 of the said Code. Chapter XI of the Motor Vehicles Act, 1988 is a special provision made for providing expeditious relief to the victims of accidents or their representatives. It prescribes a complete mechanism for making claims for compensation, for filing appeals against awards, etc. and, therefore, a complete code by itself. Section 175 of the Motor Vehicles Act, 1988 expressly bars Civil Courts from entertaining .any question relating to any claim for compensation which may be adjudicated upon by the claims Tribunal. The powers of Civil Courts vested in the Claims Tribunal are limited. In sub-section 2 of Section 169 of the Act it has been prescribed that the Claims Tribunal shall have "All powers of a Civil Court: for the purpose of taking evidence on oath and for enforcing the cb att:endance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the claims Tribunal shall be deemed to be a Civil Court for all the purposes of Section 195 of Chapter XXVI of the Code of Criminal Procedure, 1973". Thus by an express provision a clear restriction has been imposed in the application of the CPC. ±n the case Of V\ N. Munegowda vs. Mushraff All Baig and Another -. 2000 AC] 1545 a S-ingle Bench Of the High Court of Karnataka, while examining the very question before us, held as follows: - "Though this revision ..... „ ..................., appears to be not maintainable in view of the decision of this Court in Oriental Insurance Co. I:id. V. Thibbegowda, 2000 ACJ 438 fKamafakaj, whereu nder this cou rt, ..,................................,.... „ ......... Motor Accidents Claims Tribunal cannot be held to be ci.vil court for the purpose of section 115 Of Civil Procedure Code ................ u ........ n.Th-ls v-lew Of this court has been taken aft:er taking into consideration the provisions of the Nofor VeA/ares Act, J939 as well as sections 175 and 173(2) of the Motor Vehicles Act as well as provisions relating to the const:itution of the Mot:or Accidents Claims Tribunal which So merelv because it is headed bv or Presided bv a Civil Judcie or District Judae, that will not make it a civil court because if I aDDlv this DrinciDle otherwise for in this case Tribunal is headed bv a sittinci or retired Hicih Court Judae, auestion will arise whether it should ba taken as a Hiah Court? I answer certainly not, and such a question had been considered by their Lordships of the Apex Court in the context of section 7 Of Anddhra Pradesh Land Grabbing Prohibition Act, L9&2 -in the case Of State of Andhra Pradesh v. K. Mohan Lal, J998 r5j Sac 468, where a special court was constituted under that Act and which Act provided that it shall corrsist of a Judge of the High Court, sitting or retired as its Chairman and two District Judges and two revenue officers. Their Lordships observed even though it is t:ermed as special court, it will not form part of judicature or civil ]-udicature. It held it to be a Tribunal and remedy against the order thereof will be petition under Article 226/227 of the Constitution. 1A. Further section 169 of the "ofor Veh/.c/es Act reveals that leaislature while enact:inc] Motor Vehicles Act did not intend-or conceive it to be 5 civil court. It has referred to the Tribunal as the claims Tribunal and then it ---® ?r E=' Pi 5*0 I E= 10 Drovides bv virtue of sub-section f2) that the claims Tribunal shall have Dowers of a civil court under Code to take record of evidence on oath as well as to enforce attendance of witnesses. It reveals that the leciislature maintained a distinction between the Tribunal and civil gg±±±, and legislature specifically enacted the provision in the Act and in absence of Provisions of sub-section f2) of section 169 of the Act, it could not exercise those Bowers of civil court to take evidence on oath or enforce attendance of witnesses, etc. So by sub-section (2) such powers are conferred on the Claims Tribunal which powers are ordinarily vested in the civil court for taking evidence on oath and of enforcing the att:endance of witnesses and of compelling the discovery and production of documents and material objects. The later part of such-section (2) of section 169 further reveals that the legislature for certain special and specific purposes indicated, has incorporated legal fiction of `the deeming clause' and it has provided that for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973, the claims Tribunal shall be deemed t:o be civil court. It is one of the well settled principles of law that when effect of deeming clause of legal fiction has to be considered, the court has to take into consideration the purposes for which the legal fiction has been created and legal fiction is to be given effect for only that or those purposes and not beyond that. It means it is deemed to be a civil court only for limited DurDoses of section 195 and Chapter XXVI of Code of Criminal Procedure. 2. Thus considered in my opinion, the Tribunal cannot be deemed to be or considered to be civil court: for the DurDoses of sections 3, 9 and 115 of C/-wi/ Proc Lfre Code. -Under Civf-/ Procedure Cbde, revision lies from a court subordinate to Hiah Court and what courts are subordinate to Hic[h Court has been defined under section 3 Of the Civil Prodedure Code .Itself .................... " ( underiining supplied ) ±0. ±n the case Of National Insurance Co. Ltd. vs. Stnt. Florrentina Hilario Gonslaves and Others E 1999 (2) 7IAC 732 another Single Bench of the Karnataka High Court accepted the principle laid down in the above judgment and held that the civil revision filed under Section 115 of the Civil Procedure Code was not maintainable. Although the aforesaid two judgments were rendered by Benches constituted by Judges sitting singly, I have no hesitation in relying upon the principle eni]nciated therein that a Claims Tribunal not being a subordinate court under this High Court for the purpose of Pl.- 11 Section 115 CPC., the revision petition would not be maintainable and it is accordingly held so. 11. However, there is another aspect of the matter which requires consideration in the light of the decision of the Apex Court -in 2002 (2) SCC 265 -. united Insurance Co.Ltd. vs. BA«sAan Sachdewa andr Others wherein after examining the contours of Sections 173, 168 and sub-section 2 of Section 149 of the Motor Vehicles Act, 1988 it was held in paragraph 11 as follows: - "11. We are, therefore, of the vi,ew that the insurance company can fall within the ambit of the words ``any person aggrieved by an award of a Claims Tribunal" as used in Sect:ion 173(1) of the Act, when the insured failed to file an appeal against the award." 12. It is relevant to note that in the above case as in the one on hand, the insured/owner of the accident vehicle did not prefer to challenge the award of the claims Tribunal and that the Petitioner Insurance Company had filed a revision petition as it was felt that an appeal could not be filed by the insurer to challenge the award. It has been held in that decision I:hat if the insured fails to prefer an appeal against an award of the Claims Tribunal, that also would amount to failure to contest the claim as contemplated under clause (b) of Section 170 of the Motor Vehicles Act, 1988. In such eventuality, the Act enables the insurer to contest an award on all grounds available to an insured. In the present case the circumstances being identical, it was open for the insurance company to have invoked the right under Section 173 of the Act as the insured had failed to appeal E 12 ty against the award. Under such circumstances, the revision petition filed by the petitioner in my view deserves to be treated as an appeal petition filed under Section 173 of the Act. 13. Mr. Ajay Rathi, Advocate for the respondents 1 to 4 roferred to 2003(3) SCC 524 -. Sadhana Lodha vs. National Insurance Co. £tidl. Andr Others to press the point that the revision petition is not maintainable as a Claims Tribunal was not a Civil Court. I do not think the decision is of any assistance to the respondent nos. 1 to 4 as the question that was in issue before the Court was solely limited to the question as to whether a pet.ition under Article 227 of the Constitution of India was maintainable when a remedy by way of appeal to the High Court was available under Section 173 of the Motor Vehicles Act, 1988. In t:hat case the Apex Court noted the situation where there was collusion between the claimant and the insured or where the insured did not contest the claim or where the tribunal did not implead the insurance company to contest the claim. Under such circumstances it was held that it would be open to an insurer to seek permission of the tribunal to contest the claim on the ground available to the insured or to a person against whom the claim has been made and that, if permission is granted and the insurer is allowed to contest the claim on merit, it was permissible for the insurer to file an appeal against the award of the tribunal on merit. It was, therefore, held in the facts and circumstances obtaining in that case, the remedy offlllnganappealbeforetheHIghcourtwasavallabSothe 1 I.,0 a ? 13 insurer. The essence of the ratio laid down in the above two cases is that if, in a claims case, the insured does not contest the claim or the award, it would be permissible for the insurer to seek remedy of appeal under Section 173 of the Motor Vehicles Act, 1988 on all grounds available and not restricted to those contained in sub-section 2 of Section 149 of the Motor Vehicles Act, 1988. I, therefore, hold that for this reason also the petitioner has a remedy of appeal and under such circumstances and in the interest of I-ustice this revision petition is hereby treated as an appeal. 14. Having held so in point no.(ii), the petitioner would now be required to cross the hurdle as set out in point no.(iii) in order to succeed in this proceeding which I proceed to deal with hereunder: - (iii) Whether the defence of the Insurance ComDanv can be allowed to be raised on the admitt:ed Position, that it was neither raised in their written statement nor was it I)laced orally before the Tribunal. As in almost all the appeals filed by the insurance companies that have come before me thus far for ad].udication, the grounds raised in the present revision petition had not at all been taken before the Claims Tribunal eit:her in the written objection or in the oral arguments. No evidence at all was led on behalf of the petitioner on any of the averments contained in the written objection, let alone on the grounds that have been raised in the present petition. As held by this Court in ".A,C.I. Appeal No.01 of 2009 -. Senior Branch Manager National Insurance Co. L±d. 31 Ar National Highway, Opposite iE 14 Tourism Departmentr Gangtokr Eaist Sikkim vs. Namita Di-xi-I and Offlers fpara 23j, the Insurance Policy is a contract between the insurer and the insured. The law enjoins the party raising ob].ections to specifically plead and prove all objections before the Claims Tribunal. This admittedly was not: done. As held in the case of rvami-£a Di-xi-I fs«praj it is impermissible for an appellant to raise a question as an abstract question of law before this Court in the present petition. 15. Nothing has been brought on record by the petitioner to show that the bus that met with the accident in which the victim was engaged as a conductor was not a public service vehicle. As already stated, the petitioner did not adduce any evidence at all apart from filing a formal written objection. Even the insurance policy in question was brought on record and exhibited by the claimants/respondents 1 I:o 4. Under such circumstances, it is now not permissible for the petitioner to raise the objection at this stage. In a similar situation as in case at hand, it has been held by the Supreme Court in 2008 (7) SCC 305 -. Rajesh Kumar @ tfaju vs. Yudhvir Singh and Another as under-. - "11 ...... „ ...... „.It even does not appear that the contentions raised before us had either been raised before the Tribunal or the High Court. The Tribunal as also the High Court, therefore, proceeded on the materials brought on record by the parties. In absence of any contention having been raised in regard to the applicability of the Workmen's Compensation Act which, in our opinion, ex facie has no application, the same, in our opinion, cannot be permitted to be raised for I:he first time"'-i EE *'1J. '#` =:® r== e` EE 15 Therefore, in answering point (iii) it is held that t:he ground raised in the petition cannot be allowed to be raised at this stage when admittedly it was neither raised in their written objection nor was it placed orally before the claims Tribunal by application of the principles of waiver, estoppel and acquiescence. In view of the findings on point No.(ii) that the claims Tribunal is not a Civil Court and on point No.(iii) as set out above it is not felt necessary to go into the merit of the petition. Consequ'ently, the impugned award is hereby upheld. Needless to state that the amount paid t:o the claimants/respondent nos.1 to 4 by the petitioner company in pursuance of the order of this Court dated 04.11.2009 shall be deducted from the amount awarded by the claims Tribunal.