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Abdul Rashid and anr., Etc. Vs. Ram Dayal and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Civil
CourtRajasthan High Court
Decided On
Case NumberCivil Misc. Appeal Nos. 13 and 154 of 1976
Judge
Reported inAIR1986Raj30
ActsMotor Vehicles Act, 1939 - Sections 110(3); Accident Claims Tribunal (Rajasthan) Rules, 1964 - Rule 20; Code of Civil Procedure (CPC) , 1908 - Order 22
AppellantAbdul Rashid and anr., Etc.
RespondentRam Dayal and ors.
Appellant Advocate Mohd. Raffique, Adv.
Respondent Advocate K.K. Sharma and; R.M. Lodha, Advs.
DispositionAppeals dismissed
Cases ReferredNew India Ins. Co. v. Molia Devi
Excerpt:
- - 16. in madhya pradesh case, (air 1969 madh pra 190) (supra), which has been relied upon by both the learned counsel and there is interesting and enlightening observations in new india ins......that category, who for all practical purposes discharges the same judicial functions as a district judge.' additional district judge is fully competent within the meaning of section 7(3)(b) and he can validly constitute the tribunal without the approval of the high court having been obtained to his appointment.' 15. i am in respectful agreement with the above views of their lordships of the assam high court in g.c. bezbarua v. state of assam, (air 1954 assam 161) (supra). even in the decision of this court in laxminarain misra v. k.n. gupta, (air 1974 raj 55) (supra), kan singh j., as he then was, discussed the meaning of term 'district judge' and in para 8, observed that it is not necessary that the persons should be actual 'district judge' or a high court judge in office. according to.....
Judgment:

Guman Mal Lodha, J.

1. Both these appeals relate to an accident which took place on 9th Dec., 1972 at about 12.30 p.m. While Ram Dayal, the respondent, was coming from the side of the General Hospital, Bundi and wasproceeding to the Collectorate Building, he was knocked down by the truck No. HRR 3077 which was being driven by Abdul Rafiq.

2. It was alleged that Abdul Rafiq was driving the truck No. HRR 3077 rashly and negligently. The claim was contested and the issues were framed. After recording of the evidence, the learned Tribunal was of the opinion that the truck was being driven rashly and negligently. However, the learned Tribunal awarded Rs. 10,635.00/- as compensation in favour of Ram Dayal for the injuries sustained by him on account of the rash and negligent act of the driver Abdul Rafiq who also died in this accident.

3. S. B. Civil Misc. Appeal No. 154/76 by M/s. Vanguard Insurance Company Limited, now merged with the New India Assurance Company Limited, and S. B. Civil Misc. Appeal No. 13/76 by Abdul Rashid and Mst. Gafoorn who are the legal representatives of the driver Abdul Rafiq; were filed before this Court.

4. Shri R.M. Lodha, the learned counsel for the Insurance Company, has raised an important question in respect of the jurisdiction. According to him, the Motor Accident Claims Tribunal which gave Award was presided by Shri Pratap Singh Yadav, Additional District and Sessions Judge only and, not the District Judge. In view of this, it was argued that the learned Tribunal had no jurisdiction because it was not properly constituted as Shri Pratap Singh Yadav was not District and Sessions Judge and, only District and Sessions Judge can be appointed as member of the Tribunal.

5. Shri Lodha, in this connection, referred to the decisions of this Court in Laxminarain Misra v. Kailash Narain Gupta, AIR 1974 Raj 55 and, the reference was also made to the decision of Madhya Pradesh High Court in New India Insurance Co. v. Molia Devi, AIR 1969 Madh Pra 190.

6. Shri Lodha pointed out that it is established law that the Motor Accident Claims Tribunal where the District Judge can be appointed as Presiding Officer of the Tribunal, is not a Court simpliciter but a persona designata and, therefore, unless the person appointed is qualified for and competent enough to preside over the Tribunal, as such, the entire proceedings are vitiated.

7. Shri K.K. Sharma, the learned counsel for the claimant has vehemently opposed both the appeals. It was argued that the objection regarding the jurisdiction under the present circumstances, is not a question of law simpliciter but is a mixed question of fact and law and, unless it is pleaded before the Tribunal, itself, it should not be allowed to be raised first time before this Court in appeal.

8. It was then argued that the Presiding Officer of the Accident Claims Tribunal need not be the District and Sessions Judge only, as according to the provisions contained in Section 110(3) of the Motor Vehicles Act, 1939 (hereinafter referred to as 'the Act'), a person shall not be qualified for appointment as a member of a Claims Tribunal unless he (a) is, or has been, a judge of a High Court, or (b) is, or has been, a District Judge, or (c) is qualified for appointment as a Judge, of the High Court.

9. From the above, Shri Sharma argued that the District Judge is one of the species of the qualifications. Shri Sharma also contended that the connotation of the 'District Judge' is too wide as it includes Additional District Judge, also. Shri Sharma further pointed out that a person who can be appointed as a Judge of High Court, shall not be qualified for appointment as a Judge of High Court unless he is a citizen of India and has for at least ten years held a judicial office in the territory of India; or (b) has for at least ten years been an advocate of a High Court or of two or more such Courts in succession; as enshrined under Article 217(2) of the Constitution.

10. From the above, Shri Sharma pointed out that if Shri Lodha would have raised this objection before the Tribunal then the claimants would have proved that Shri Yadav has held ten years service in judicial field/office on the date Shri Yadav was appointed to preside over the Tribunal.

11. Shri Lodha, in rejoinder, submitted that it was not necessary to raise such a plea but it goes to the root of the matter and, the Court can take a judicial notice of the facts which are hardly in dispute.

12. Before I proceed to decide the judicial controversy raised about the qualifications of the persons to be appointed as member of the Claims Tribunal, I must, at the very outset,mention that the issue in the instant case is only academic because as per the authoritative information, Shri Pratap Singh Yadav was appointed on 17th Sept., 1963 as Munsif and Judicial Magistrate in Rajasthan and he was promoted as Civil Judge on 14th Dec. 1971, Chief Judicial Magistrate on 1st April, 1974, Additional District and Sessions Judge on 12th May, 1975 and, District and Sessions Judge on 2nd Sept., 1978.

13. The above information is contained in the Rajasthan Judicial Services Directory, 1983 published by V.K. Singhi, Abhay Prakashan, High Court Road, Jodhpur, with a Foreword of Hon'ble the Chief Justice. The above factual aspect is not in doubt or debate or dispute. In view of this, Shri Pratap Singh Yadav had completed 10 years in judicial services of Rajasthan and he was qualified to be appointed as a High Court Judge and consequently he was qualified to be appointed as member of the Accident Claims Tribunal under Section 110(3) of the Act.

14. Apart from the above, a Division Bench of Assam High Court in G.C. Bezbarua v. State of Assam, AIR 1954 Assam 161, interpreting analogous provisions of the Industrial Disputes Act whereas the members are appointed in the Tribunal having similar qualifications, have discussed this question -- threadbare and para 9 contains elaborate discussion about the meaning which should be put to the meaning of 'District Judge'. The relevant observations in Para 9 reads as under :

'None of the definitions of 'District Judge' in General Clauses Act, or Assam General Clauses Act or Civil P.C. or Bengal, Agra and Assam Civil Courts Act, restricts the meaning of District Judge and there is no justification to restrict it in Section 7 of the Industrial Disputes Act. Consequently, the word 'District Judge; in Section 7(3)(b) includes Additional District Judge.'

'The whole object of the enactment was to provide, amongst others, for officers of the experience and status of a District Judge to preside over such Tribunals and it would be, therefore, unreasonable to exclude an Additional District Judge from that category, who for all practical purposes discharges the same judicial functions as a District Judge.'

Additional District Judge is fully competent within the meaning of Section 7(3)(b) and he can validly constitute the Tribunal without the approval of the High Court having been obtained to his appointment.'

15. I am in respectful agreement with the above views of their Lordships of the Assam High Court in G.C. Bezbarua v. State of Assam, (AIR 1954 Assam 161) (supra). Even in the decision of this Court in Laxminarain Misra v. K.N. Gupta, (AIR 1974 Raj 55) (supra), Kan Singh J., as he then was, discussed the meaning of term 'District Judge' and in para 8, observed that it is not necessary that the persons should be actual 'District Judge' or a High Court Judge in office. According to his Lordship, a Munsif or Civil Judge can be appointed if he fulfils the qualification of holding judicial service for 10 years or more.

16. In Madhya Pradesh case, (AIR 1969 Madh Pra 190) (supra), which has been relied upon by both the learned counsel and there is interesting and enlightening observations in New India Ins. Co. v. Molia Devi, at para 9, it was observed that in every case it would be necessary to examine whether the person functioning as a tribunal is qualified or not.

17. Section 10(3) of the Rajasthan Civil Courts Ordinance, 1950 empowers the Additional Judge to discharge any of the functions of the District Judge. Section 10 reads as under:

'10. Additional Judges.--(1) When the business pending before any District Judge or District Judges so requires for its speedy disposal, the State Government may, upon the recommendation of the High Court sanction the appointment of such number of Additional Judges for the Court or Courts of such District Judge or District Judges, as may be necessary.

(2) The provisions of Section 9 shall apply also to the appointment, posting and promotion of, and filling up of vacancies among Additional Judge.

(3) Any Additional Judge so appointed shall discharge any of the functions of a District Judge which the District Judge may assign to him, and in the discharge of those functions, he shall exercise the same powers as the District Judge.'

18. In my considered opinion, in the instant case, it has come on record that viewed from each and every angle, Shri Pratap Singh Yadav's appointment as member of the Accident Claims Tribunal at Bundi was valid and justified.

19. In Section B. Civil Misc. Appeal No. 13/76 filed by Abdul Rashid, an additional point was raised that since the driver of the vehicle died, his legal representative could not have been brought on record He relied upon Rule 20 of the Accident Claims Tribunal (Rajasthan) Rules, 1964 which reads as under :

'20. Code of Civil Procedure to apply in certain cases.-- The following provisions of the first Schedule to the Code of Civil Procedure, 1908 (Central Act 5 of 1908) shall so far as may be, apply to proceedings before the Claims Tribunals, namely, Order V, Rules 9 to 13 and 15 to 30; Order IX; Order XIII, Rules 3 to 10, Order XVI, Rules 2 to21; Order XVII; and Order XVIII, Rules 1 to 3.'

From the above, he wants to point out that the application of Order 22 under which the procedure for making legal representative has been prescribed, has been excluded.

20. I regret, that I cannot accept such a tall submission. In my opinion, the above rule only mentions some of the Orders and Rules of the C.P.C. for applying them as far as possible. For the purpose of the procedure of the Tribunal, no rule of prohibition or exclusion can be inferred from it of the other rules. Even otherwise, the application is 'as far as possible' which means that it is illustrative and not exhaustive.

21. I am of the opinion that the objection taken by the learned counsel is untenable and consequently it is rejected.

22. The result of the above discussion is that both the appeals are dismissed with no order as to costs.


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