STATE OF HARYANA

DARSHANA DEVI & ORS.

February 12, 1979

[V. R. KRISHNA IYER AND 0. CHINNAPPA REDDY, JJ.)

Civil Procedure Code, Or. XXXIII, application to accident-claims cases, principles involved.

'fhe respondents, a. widow and her daughter, claimed con1pensation for the •

killing of their sole bread-winner, by a Haryana State Transport bus, but could ,, not afford to pay any court fee on their clai, m.

The High Court held that the ___,,.,{ exemptive provisions of Order XXXIII, crc, will apply to Accident Claims-- ---..,__ Tribunals, which have the trappings of the Civil Court.

Dis-missing the special leave petition the Court,

HELD : The Sta.te should fram'e appropriate rules to exempt from levy of court fee, cases of claims of compensation where automobile accidents are the cause. T\vo principles are involved. Firstly, access to court, is an integral part of social justice, and tfre State bas no rational litigation policy if it forgets this fundamental, and secondly, it is the State's duty under Art. 41 of the Constitution to render assistance, without litigation, in cases of disablement and undeserved want. [185 B-C, D, 186 C]

M. Cappelletti, Rabels Z, (1976) 669 at 672; quoted with approval.

Obiter dictum :

I. It is a public duty of each great branch of Government to obey the rule of law and uphold the trys.t with the Constitution by making rules to effec~µat't legislation meant to help the poor. Now that insurance against third party risk is oompul, sory and motor insurance is nationalised, a'-'ld transport itself i! largely by Sta.le Undertakings, the principle of no-fault liability and on-the-spot e'ettlement of claims should become national policy. [186 B, C, D-E]

II. Courts must give the accident claimS' cases high priority, adopt simplified procedures \Vithout breach of natural jus-tice, try. out pre-trial settlements aind narrow down the controversy and remember, that 'wiping every tear from every eye' has judicial relevance. For, law must keep its promise to justice. [186 G~

CIVIL APPELLATE JURISDICTION : Special Leave Petition (Civil) No. 4120 of 1978.

From the Judgment and Order dated 8-3-78 of the Punjab and Haryana High Court in Civil Revision No. 80 I /7 6.

Prem Malhotra and M. N. Shroff for the Petitioner.

The Order of the Court was delivered by

0 KRISHNA IYER, J.-We refuse leave bnt with a message tag.

The poor shall not be priced out of the justice market by insistence on court-fee and refusal to apply the exemptive provisions of

J ,_

HARYANA V- DARSHANA (Krishna Iyer, !.) 185

Order XXXIII, C.P.C So we are distressed that the State of Haryana, mindless of the mandate of equal justice to the indigent under the Magna Carta of our Republic, expressed in Article 14 and stressed in Art 39A of the Constitution, has sought leave to appeal against the order of the High Court which has rightly extended the 'pauper' provisions to auto-accident claims.

The reasoning of the High Court in holding that Order XXXIII will apply to tribunals which have the trappings of the civil court finds our approval.

We affirm the decision.

Even so it is fair for the State to make clear the situation by fram- --ing appropriate rules to exempt from levy of court fee cases of claims -(

c • of compensation where automobile accidents are the cause .

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Here is a case of a widow and daughter claiming compensation for the killing of the sole bread-winner _by a State Transport bus; and the Haryana Government, instead of acting on social justice and generously settling the claim, fights like a cantankerous. litigant even by avoiding adjudication through the device of asking for court-fee D from the pathetic plaintiffs.

Two principles are involved.

Access to court is an aspect of Social Justice and the State has no rational litigation policy if it forgets this fundamental.

Our perspective is best projected by Cappelletti, quoted by the Australian Law Reform Commission :

"The nght of effective access to justice has emerged with the new social rights. Indeed, it is of paramount importance among these new rights since, clearly, the enjoyment of traditional as well as new social rights presupposes mechanisms for their effective protection.

Such protection, moreover, is best assured by a workable remedy within the framework of the judicial system.

Effective access to justice can thus be se.en as the most basic requirement-the most basic 'human right'-of a system which purports to guarantee legal right."(')

We should expand the jurisprudence of Access to Justice as an integral part of Social Justice and examine the constitutionalism of courtfee levy as a facet of human rights highlighted in our Nation's Constitution. If the State itself should travesty this basic principle, in the teeth of Articles 14 and 39A, where an indigent widow is involved, a second look at i_ts policy is overdue.

The Court must give the benefit of doubt against levy of a price to enter the temple of justice -----

(l) M. Cappelletti, Rabcls Z (1976) 669 at 672.

I -i96SCll79

• D

SUPREME COURT REPORTS

[1979] 3 S.CRuntil one day the whole issue of the validity of profit-making through sale of civil justice, disguised as court-fee, is fully reviewed by this Court.

Before parting with this point we must express our poignant feeling that no State, it seems, has, as yet, framed rules to give effect to the benignal\t provision of legal aid to the poor in Order XXXIII Rule 9 A, Civil Procedure Code, although several years have passed since the enactment.

Parliment is stultified and the People are frustrated.

Even after a law has been enacted for the benefit of the Poor, the State does not bring into force by wilful default in fulfilling

the conditio sine qua non. It is a public duty of each great branch ' of Gcvernmcnt to obey the rule of law and uphold the tryst with the - ~._

Constitution by making rules to effectuate legislation meant to help the poor.

The second principle the State of Haryana has unhappily failed to remember is its duty under Art. 41 of the Constitution to render public assisttlnce, without litigation, in cases of disablement and undeserved want. It is a notorious fact that our highways are graveyards on a tragic sale, what with narrow, neglected roads, reckless, unchecked drivers, heavy vehicular traffic and State Transport buses often inflicting the maximum casualties.

Now that insurance against third party risk is compulsory and motor insurance is nationalised and transport itself is largely by State Undertakings, the principle of no-fault liability and on-the-spot settlement of claims should becume national policy.

The victims, as here, are mostly below the poverty line and litigation is compounded misery.

Hit-and-run cases are common and the time is ripe for the court to examine whether nofault liability is not implicit in the Motor Vehicles Act itself and for Parliament to make law in this behalf to remove all doubts.

A long ago Report of the Central Law Commission confined to hit-and-run-~ cases of auto-accidents is gathering dust.

The horrendous increase

- "" of highway casualties and the chronic neglect of rules of road-safety constrains us to recommend to the Central Law Commission and to Parliament to senitize this tragic area of tort law and overhaul it humanistic ally.

Another asi;>ect must be noticed before we part with this petition.

In many States, for want of judicial manpower or other pathological causes, the accident claims pend before tribunals in heartless slowness.

Courts must give this bleeding class of cases high priority, adopt simplified procedures without breach of natural justice, try ont pre-trial settlements and narrow down. the controversy and remember, that 'wiping every tear from every eye' has jndicial relevance.

For, law must keep its promise to Justice.

., .

'-C . '

HARYANA v. DARSHANA (Krishna Iyer, J.) 18 7

While we di•mi•s the petition for leave, we hope the Haryana A State will hasten to frame rules under the Motor Vehicles Act to •enable claimants for compensation to be free from payment of courtfee .

M.R.

Petition dismissed.

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