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R. Govindarajulu Naidu and anr. Vs. S. Dharman and anr. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtChennai High Court
Decided On
Case NumberC.M.P. SR. 76358 of 1980 and A.A.O.S.R. 76357 of 1980
Judge
Reported inAIR1985Mad264
ActsMotor Vehicles Act, 1939 - Sections 110-D and 111-A; Code of Civil Procedure (CPC), 1908 - Order 33, Rule 1 - Order 44, Rule 1; Tamil Nadu Motor Accidents Claims Tribunals Rules, 1961 - Rules 19 and 20
AppellantR. Govindarajulu Naidu and anr.
RespondentS. Dharman and anr.
Advocates:R.S. Venkatachari, Adv.
Cases ReferredDarshna Devi v. Sher Singh
Excerpt:
.....1 and order 44 rule 1 of code of civil procedure, 1908 - appeal against order of motor accidents claims tribunal - whether high court in exercise of its appellate powers permit person to prefer appeal to this court as indigent person - high court while hearing appeal under the act exercises its ordinary appellate powers and follow its practice and procedure as ordinary appellate court - order 33 deals with institution of proceedings by indigent persons - order 44 deals with appeals by indigent person - appeals by indigent persons shall be dealt with in same manner as institution of original proceedings by indigent persons - appellants competent to invoke aid of order 44 and thereby order 33 - order accordingly. - - provided that, the high court may entertain the appeal after the..........on 7-12-1978. the proposed civil miscellaneous appeal is directed against the order of the claims tribunal. pleading that they are indigent persons the appellants have filed a petition under o. 44, r. 1 c.p. code, hereinafter referred to as the code, for leave to file the appeal as indigent persons. the office of this court felt a difficulty and a doubt as to the propriety of the appellants invoking the provisions of the code and that too, o. 44 and the allied provisions of the code, in the proposed appeal before this court.2. the claims tribunals under the act get constituted by and they function and exercise powers within the ambit of the relevant provisions in the act found in ss. 110, 110-a to 110-e, except s. 110-d which relates to appeals to this court. the state.....
Judgment:

Nainar Sundaram, J.

1. The matter comes before us on a note by the office of this Court regarding maintainability. The Additional Motor Accidents Claim Tribunal, Madras has passed an order on 1-2-1980 in O. P. 182 of 1979, dismissing the said petition preferred under S. 110-A of the N16tor Vehicles Act IV of 1939, hereinafter referred to as the Act, by the appellants in the proposed civil miscellaneous appeal, for a compensation of Rs. 75,000, relatable to the death of one Mohan in a motor accident on 7-12-1978. The proposed civil miscellaneous appeal is directed against the order of the Claims Tribunal. Pleading that they are indigent persons the appellants have filed a petition under O. 44, R. 1 C.P. Code, hereinafter referred to as the Code, for leave to file the appeal as indigent persons. The office of this court felt a difficulty and a doubt as to the propriety of the appellants invoking the provisions of the Code and that too, O. 44 and the allied provisions of the Code, in the proposed appeal before this court.

2. The Claims Tribunals under the Act get constituted by and they function and exercise powers within the ambit of the relevant provisions in the Act found in Ss. 110, 110-A to 110-E, except S. 110-D which relates to appeals to this court. The State Government, under S. 111-A is invested with powers to make rules to effectuate the provisions of Ss. 110 to 110-E We find that pursuant to this power, the Tamil Nadu Motor Accidents Claims Tribunals Rules 1961, hereinafter referred to as the Rules, have been framed. The Rules so framed practically regulate the proceedings before the Claims Tribunals. Rule 20 deals with fees for proceedings and sub-rule (2) thereof gives the discretion to the Claims Tribunals to grant exemption from the payment of fees prescribed. Rule 18 enumerates certain provisions of the Code, which are to apply so far as may be to proceedings before the Claims Tribunals. Sec. 110-C (2) should also be taken note of when it states that the Claims Tribunals shall have all the powers of a civil court for specified purposes. In this appeal proposed, we are not concerned with the powers of the Claims Tribunals to invoke the provisions of O. 33 of the Code and permit any person to institute proceedings before them as indigent person, that question does not arise for consideration at all before us.

3. So far as this court is concerned, appeal against the award of the Claims Tribunal lies to it under S. 11OD which runs as follows -

'Appeals : (1) Subject to the provisions of sub-sec. (2), any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court;

Provided that, the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.

(2) No appeal shall lie against any award of a Claims Tribunal, if the amount in dispute in the appeal is less than two thousand rupees.'

The ambit of the powers of this Court in appeal is not touched at all either by the provisions of the Act or the rules. Rule 19 merely speaks about the form of the appeal and R. 20 lays down the Court-fees payable on appeal. The question that arises for consideration in such a contingency is as to whether this court, in the exercise of its appellate powers, permit the invocation of O. 44 and thereby O. 33 of the Code, to enable a person to prefer an appeal under the Act to this court as an indigent person. That is the question that has directly arisen before us for consideration.

4. Mr. R. S. Venkatachari, learned counsel for the appellants, would submit that when once an appeal lies to this Court, all the practice, procedure and provisions relating to the appellate jurisdiction of this Court will be attracted and there is no exclusion of the Code in the exercise of appellate powers by this court in appeals against the awards of Claims Tribunals, under the Act. There is substance in this submission. This Court is not constituted as a Special Tribunal to hear appeals under the Act. S. 110D merely states that any person aggrieved by an a award of the Claims Tribunal may within the time prescribed prefer an appeal to the High Court and the matter is left there. When the statute directs an appeal to an ordinary civil Court without in any manner circumscribing the practice, procedure and powers of such court as a civil appellate Court, the court will have to deal with the appeals with all the trappings and powers as an ordinary civil court of appeal. This is the fundamental rule that has been uniformly countenanced and applied by courts.

5. As early as 1888, a Full Bench of this Court in Kamaraju v. Secy. of State for India ILR (1888) Mad 309, had occasion to consider the scope of the appeal to the District Court under S. 10 of the Madras Forest Act V of 1882 and it found that it was a regular appeal to the District Court, which is a court of regular jurisdiction from the decrees of which a second appeal ordinarily lay to this court.

6. In National Telephone Co. Ltd.V.Postmaster General, 1913 AC 546, the observations of the House of Lords run as follows

'When a question is stated to be referred to an established court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that court are to attach, and also that any general right of appeal from its decisions likewise attaches.'

(See : AIR1976AP122 )

7. In Secy. of State for India v. Chellikani Rama Rao, ILR (1916) Mad 617: AIR 1916 PC 21 the proposition countenanced by the Privy Council runs as follows -

'Though an appeal from the District Judge to the High Court is not provided for in the Madras Forest Act, in a claim to lands which have been notified as reserved forest lands under the Act, such an appeal will lie under the provisions of the Civil Procedure Code. Where in such proceedings the District Court is reached, the at court is appealed to as one of the ordinary courts of the country with regard to whose procedure, orders and decrees the rules of the Civil Procedure Code are applicable. In such a case, the ordinary incidents of litigation could only be excluded by specific provisions to that effect'.

Head note.

8. In Adaikappa v. Chandrasekhara , the principle has been set out in the following terms, and while doing so, the earlier pronouncements of the Privy Council, the one already referred to above in Secy. of State for India v. Chellikani Rama Rao, ILR 39 Mad 617: AIR 1916 PC 21 and the other in Hem Singh v. Basant Das were relied on -

'.........The true rule is that where a legal right is in dispute and the ordinary courts of the country are seized of such disputes the courts are governed by the ordinary rules of procedure applicable thereto as an appeal

lies, if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal.' -Page 14

9. In N. S. Thread Co. Ltd. v. James Chadwick and Bros., : [1953]4SCR1028 after stating that a decision given by a single Judge of a High Court in an appeal preferred under S. 76 of the Trade Marks Act, constitutes a judgment within the meaning of Cl. 15 of the Letters Patent, it has been held as follows -

'Ordinarily after an appeal reaches the High Court,, it has to be determined according to the rules of practice and procedure, of that court and in accordance with the provisions of the Charter under which that court is constituted and which confers on it power in respect to the method and manner of exercising that jurisdiction. Thus, S. 76, Trade Marks Act, confers a right of appeal to the High Court and says nothing more about it. That being so, the High Court being seized as such of the appellate jurisdiction conferred by S. 76 it has to exercise that jurisdiction in the same manner as it exercises its other appellate jurisdiction and when such jurisdiction is exercise by a single Judge, his judgment becomes subject to appeal under Cl. 15 of the Letters Patent, there being nothing to the contrary in the Trade Marks Act.'

Head note

The pronouncement of the House of Lords in National Telephone Co. Ltd. v. Postmaster General, - 1913 AC 546 and those of the Privy Council in Secy. of State for India v. Chellikani Rama Rao, ILR (1916) Mad 617: AIR 1916 PC 21 and Adaikappa v. Chandrasekhara, have been relied on.

10. In Collector, Varanasi v. G. S. Misra, : [1968]1SCR372 , the question arose as to whether, while acting under S. 19(l)(f) of the Defence of India Act 1939, the High Court functions as a Court and not as designated person, and it has been laid down as follows -

'The High Court of a State is at the apex of a State's judicial system. It is a court of record and it is difficult to think of a High Court as anything other than a Court. No judicial power was ever entrusted to the High Court except as a 'Court' and whenever it decides or determines any dispute that comes before it, it 'invariably does so as a court. That apart, when S. 19(l)(f) specifically says that an appeal against the order of an arbitrator lies to the High Court, there was no justification for thinking that the legislature said something which it did not mean. Furthermore, neither the Act, nor the rules framed there under prescribe any special procedure for the disposal of appeals under S. 19(l)(f) and appeals under that provision have to be disposed of in the same manner as other appeals to the High Court according to its own rules of practice and procedure.'

Headnote

11. In Manjula Devi Bhuta v. Manjuri Raha, 1968 Acc CJ 1, a Bench of the High Court of Madhya Pradesh observed as follows; while upholding the competency of cross objections under O. 41, R. 22 of the Code in an appeal under the Act

'...........as soon as this court becomes seized of an appeal, even where an appellate jurisdiction is conferred under a special statute, the rules of practice and procedure of this Court applicable to a civil appeal, will, in the absence of any specific rule to the contrary govern such appeal

Page 13

While doing so, the Bench relied on Secy. of State for India v. Chellikani Rama Rao, ILR (1916) Mad 617 : AIR 1916 PC 21 and N. S. Thread Co. v. James Chadwick and Bros., : [1953]4SCR1028 .

12. In Delhi Municipality v. Kuldip, : AIR1970Delhi37 , a Full Bench of the High Court of Delhi had occasion to consider the nature of jurisdiction of the Claims Tribunal and of the High Court under the Act. The Headnote in the report has practically brought out the ratio laid down by the Full Bench and the relevant passages therefrom stand extracted as follows -

'A decision given by a single Judge of the High Court in appeal under S. 110D of the Motor Vehicles Act, against an award of the Motor Accident Claims Tribunal, is a judgment within the meaning of clause 10 of the Letters Patent.

The question, whether a particular decision of the High Court is a judgment or is only a determination turns on the connected question whether the decision is given by the High Court acting as a High Court or whether it is given by it acting as a Tribunal or a persona designata.

The theory that an appeal takes colour from the original proceeding is not to be carried too far. Three aspects to be considered are -- (1) the nature of the Tribunal, (2) the nature of the proceeding before it, and (3) the nature of the decision given by it. It would not be correct to say that merely because the Tribunal was not a court or the proceeding before it was not a suit or its decision was not a judgment but an award, the High Court hearing appeal against its decision would not be a court or the proceedings before the High Court would not be in its ordinary jurisdiction or that the decision of the High Court on such appeal would not be a judgment. Therefore, even if the original proceeding took place before the Arbitrator, resulting in an award, the appeal to the High Court will not turn the High Court itself into a persona designata or an Arbitration Tribunal and will not, therefore, make the judgment of the High Court an award

In hearing the appeal under S. 110D of the Motor Vehicles Act, the High Court must be held to be acting as a High Court and not as a Tribunal, inasmuch as the claim for compensation for negligence is a common law right not created by a statute and the claim is considered by the Tribunal in its entirety without limitation, with the result that an appeal to the High Court is made in its ordinary civil jurisdiction. In fact, 'an appeal by special leave under Art. 136 lies to the Supreme Court, against the determination or order of a Tribunal. The High Court also has the superintendence over other Courts and Tribunals under Art. 227 of the Constitution. It has never been doubted that the SupremeCourt and the High Court act as the Supreme Court and the High Court in functioning under Arts. 136 and 227 of the Constitution respectively and do not act as an Arbitrator or a Tribunal in doing so. For the same reason, the High Court would also act as the High Court and not as a Tribunal in hearing the appeal under S. 110D of the Act.'

13. In Shanti Devi v. G. M. Haryana Roadways, a Full Bench of the High Court of Punjab and Haryana, following Collector, Varanasi v. G. S. Misra, : [1968]1SCR372 , held as follows --

'The High Court while hearing appeals under S. 110D of the M. V. Act, acts as a 'court' and a proceeding even if at its inception has semblance of an arbitration proceedings, does not retain its character as such in appeal.'

Headnote

14. A Bench of this Court in Union Coop. Ins. Society v. Lazarammal, : AIR1974Mad379 observed as follows, and upheld the competency of entertaining cross-objections in an appeal before this court under the Act:-

'.........It must be remembered that when once an appeal is entertained by this court, all the provisions relating to the appellate jurisdiction to this court are attracted. It is true that all the provisions of the Civil Procedure Code are not applicable to the Tribunal, because, it is a creature of the Statute, but the appeal against the order of the Tribunal is to the High Court and not to any other Tribunal constituted under the statute.'

Page 380

15. In K. Chandrasekhara Naik v. Narayana, : AIR1975Kant18 , the competency of cross-objections to the High Court in an appeal under the Act was upheld by a Full Bench of the High Court of Karnataka and it has been countenanced as follows :

'Except providing for an appeal to the High Court under S. 110D, the Act does not expressly lay down the procedure to be followed by the High Court in dealing with appeals filed before it. The Karnataka Motor Vehicles Rules also do not contain any provisions as to such procedure. In sue a contingency the Special Act being silent in regard to the procedure by the appellate Court, such an appellate jurisdiction has to be exercised in the same manner as the High Court exercises its general appellate jurisdiction and that the appeal so filed must be regulated by the practice and procedure of the High Court'.

Headnote

16. A Bench of the High Court of Punj. and Har. in Triloki Nath Bhargava v. Jaswant Kaur, recapitulated the principle and held that in an appeal against. an award of the Claims Tribunal under the Act, there could be cross-objections and the principle taken note of runs as follows :-

'As soon as the High Court becomes seized of an appeal under S. 110D the rules of practice and procedure of the High Court becomes applicable to the appeal as there is no special rule to the contrary in the Act or the rules framed there under and, therefore, cross-objections under O. 41, R. 22 C.P.C. can be filed.' --Headnote

17. In State v. K. Padma Rani, : AIR1976AP122 , a Bench of the High Court of Andh. Pra. also upheld the competency of cross-objections in an appeal before the High Court under the Act. Equally, a Bench of the High Court of Calcutta, in Gurdev Kaur v. Ras Behari, : AIR1978Cal547 , countenanced the competency of filing cross-objections in appeal to the High Court under the Act.

18.Thus, we find that uniformly it has been countenanced that the High Court, while hearing an appeal under the Act, exercises its ordinary appellate powers and should follow its practice and procedure as are normally attributable to it as an ordinary appellate Court; and in the absence of any circumscription or regulation of the said powers, the rules of practice and procedure, and power as per the provisions of the Code can be legitimately invoked for the purposes set out therein in the matter of dealing with such an appeal. Order 33 of the Code deals with institution of proceedings by indigent persons. O. 44 deals with appeals by indigent persons and it contemplates, that appeals by indigent persons shall be dealt with in the same manner as institution of original proceedings by indigent persons. In this view, we have to hold that it will be competent for the appellants to invoke the aid of Order 4.4 and thereby O. 33 of the Code.

19. Our attention has been drawn to a pronouncement of the High Court of Punjab and Haryana in Darshna Devi v. Sher Singh, 1979 Acc CJ 442: AIR 1978 Punj & Har 265, wherein Koshal C. J. as he then was, held that the Claims Tribunal is -a civil court for the purposes of Order 33 of the Code. In State of Haryana v. Darshana Devi : [1979]3SCR184 , the Supreme Court approved the reasoning of Koshal C. J. as he then was in Darshna Devi v. Sher Singh, 1979 Acc CJ 442: AIR 1978 Punj & Har 265, that O. 33 will apply to Tribunals which have the trappings of the civil Court. This question does not strictly arise for consideration before us, as we stated above, and there is no need to express any opinion about the same in this matter.

20. The office of this Court will first number the application for permission to prefer the appeal under the Act as indigent persons if the said application is strictly in order with the concerned provisions of the Code, and post the same for orders.

21. Order accordingly.


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