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Hukumchand Insurance Co. Ltd. Vs. Sm. Subashini Roy and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberS.C.A. No. 68 of 1972
Judge
Reported inAIR1974Cal321
ActsConstitution of India - Article 133 and 133(1); ;Constitution of India (Amendment) Act, 1972
AppellantHukumchand Insurance Co. Ltd.
RespondentSm. Subashini Roy and anr.
Appellant AdvocateMalay Kumar Basu, Adv.
Respondent AdvocatePrabhas Chandra Chatterjee, Adv. (for No. 1) and ;Rathindra Nath Bhattacharjee, Adv. (for No. 2)
DispositionApplication dismissed
Cases ReferredChunilal v. C. S. and M. Co. Ltd.
Excerpt:
- .....purpose provides :'(a) any appeal under sub-clause (a) or sub-clause (b) or sub-clause (c) of clause 1 of article 133 of the constitution which immediately before the commencement of this act was pending before the supreme court : or (b) any appeal preferred on or after the commencement of this act against any judgment, decree or final order in a civil proceeding of a high court by virtue of a certificate given by the high court before the commencement of this act under sub-clause (a) or sub-clause (b) or sub-clause (c) of clause 1 of article 133. and every such appeal may be heard and disposed of or, as the case may be, entertained, heard and disposed of by the supreme court as if this act had not been passed.' 4. from a fair reading of the above provisions it is quite clear that.....
Judgment:

A.K. Sinha, J.

1. This is an application for certificate to enable the appellant petitioner to prefer an appeal against our judgment and Order D/- 10-7-70. We need not for brevity's sake over again decide (recite) facts of the case for these would appear from our judgment. The appeal was preferred by the present petitioner Hukumchand Insurance Co. Ltd. against an Award of compensation for a sum of Rs. 24,300/- in favour of the respondent Sm. Subahsini Roy who was the mother of the victim who died as a result of motor accident. The Tribunal found on evidence that the son of the respondent was injured and died as a result of rash and negligent driving of the car involved. In the appeal before us the correctness of this finding as also the quantum of compensation was challenged by the appellant petitioner. An objection was taken, however, on behalf of the respondent as to the maintainability of the appeal on the ground that it was not open to the appellant to dispute the correctness of the decision of the Tribunal on matters not covered by the defence which it was not entitled to take under the law as provided under Section 96 of the Motor Vehicles Act. We, however, mainly following the decision of the Supreme Court in B. I. G. Insurance Co. v. Itbar Singh, : [1960]1SCR168 concluded that the appeal was not maintainable at the instance of the injured appellant against the decision of the Claims Tribunal on ground not allowed under the Act.

2. Now, the provisions of the Article 133 of the Constitution have undergone substantial changes. By the Constitution (Thirteenth Amendment) Act, 1972 it provides:

(a) That the case invokes a substantial question of law of general importance.

(b) That in the opinion of the High Court the said question needs to be decided by the Supreme Court.

In view of the present structure of the above Article, the only question is whether the case involves :

'(a) a substantial question of law of general importance;

(b) that in the opinion of the High Court the said question needs to be decided by the Supreme Court.'

3. All other provisions have been scraped out with the result that the question of valuation of the appeal under previous Clauses (a) and (b) or the question of fitness for appeal in the circumstances as were provided in Clause (c) of Sub-article (i) of Article 133 of the Constitution did not arise. It is however, contended by Mr. Bose on behalf of the petitioner that since this application for certificate was pending at a time when the amendment did not come into force, it would come within the exception Clause as provided under Section 3 of the Amendment Act and the petitioner would be entitled to the benefits of Clause (a) or (b), as the case may be, under Sub-article (i) of Article 133. It is said that since the value of the subject-matter of the appeal is not less than Rs. 20,000/- it is entitled to a grant of certificate as a matter of course. We fail to see how this is so. The material part of Section 3 relevant for out present purpose provides :

'(a) any appeal under Sub-clause (a) or Sub-clause (b) or Sub-clause (c) of Clause 1 of Article 133 of the Constitution which immediately before the commencement of this Act was pending before the Supreme Court : or

(b) any appeal preferred on or after the commencement of this Act against any judgment, decree or final order in a civil proceeding of a High Court by virtue of a certificate given by the High Court before the commencement of this Act under Sub-clause (a) or Sub-clause (b) or Sub-clause (c) of Clause 1 of Article 133.

and every such appeal may be heard and disposed of or, as the case may be, entertained, heard and disposed of by the Supreme Court as if this Act had not been passed.'

4. From a fair reading of the above provisions it is quite clear that under Clauses (a) and (b) the appeal either must be pending or preferred on or after the commencement of the Act by virtue of certificate already given by the High Court before the commencement of the Act under Sub-clauses (a), (b) or Sub-clause (c) of Clause 1 of Article 133. It is, however, said that the latter group of appeals will also include an application for appeal but we think the language of the Statute is quite clear and does not admit of any such interpretation. Firstly because, there is no reference to these appeals in any form pending before the High Court at the commencement of the Amendment Act and secondly because, it is provided in the next paragaph that every such appeal would be heard and disposed of or as the case may be entertained and disposed of by the Supreme Court as if this Act had not been passed. It seems, therefore, quite clear that all such appeals must be pending or preferred before the Supreme Court and not the High Court on or after the date of the commencement of the Amendment Act. We, therefore, do not find any substance in the points raised.

5. The next question is whether the petitioner's case involves a substantial question of law of general importance. It is contended that although the Supreme Court construed Section 96 (2) of the Motor Vehicles Act in the B. I. G. Insurance Company's case (supra) but then it has been held in K. Gopalkrishnan v. Shankara Narayanan, : AIR1968Mad436 that the interpretation was limited to the case of a suit and not regarding any defence set up before the Claims Tribunal. We, however, noticed this judgment but could not agree. The decision of the Supreme Court has also been followed by Bombay High Court in Abdulkadar v. Kashinath, : AIR1968Bom267 . Be that as it may, it is not merely erroneous decision on point of law but whether the case involves substantial question of law of general importance. It is fairly established that if the law is well-settled by the Final Court of appeal, then the question raised cannot be said to have involved the substantial question of law. (See State of J. and K. v. Ganga Singh, : [1960]2SCR346 , Chunilal v. C. S. and M. Co. Ltd., : AIR1962SC1314 ). The mere fact that the Supreme Court decision was followed to a limited extent by the Madras High Court cannot and should not be held to be sufficient as to raise a substantial question of law of general importance. In our opinion, this is not a fit case where in our opinion the question raised requires decision of the Supreme Court.

6. In the result the application fails and is dismissed but there will be no order as to costs.

Borooah, J.

7. I agree.


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