Full Judgment Text
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CASE NO.:
Appeal (civil) 557 of 2003
PETITIONER:
Sadhana Lodh
RESPONDENT:
National Insurance Company Ltd. & Anr.
DATE OF JUDGMENT: 24/01/2003
BENCH:
CJI., S. B. Sinha & AR. Lakshmanan
JUDGMENT:
J U D G M E N T
(Arising out of S.L.P. No. 21854 of 2001)
KHARE, CJI.
Leave granted.
The appellant’s son, aged 24 years and drawing a sum of Rs.
4,000/- per month, died in a motor vehicle accident. The appellant
herein filed a claim petition before the Motor Accidents Claims
Tribunal (hereinafter referred to as ’the Tribunal’). The Tribunal
awarded a sum of Rs. 3,50,000/- as compensation. Aggrieved, the
insurer, who is respondent No. 1 herein, filed a writ petition under
Articles 226 and 227 of the Constitution of India before the Guwahati
High Court. A learned Single Judge of the High Court dismissed the
writ petition. Aggrieved, the insurer preferred a Letters Patent Appeal
before the Division Bench of the High Court. Before the High Court,
the claimant took an objection that since petition under Article
226/227 is not maintainable, therefore, the appeal is totally
misconceived and the same deserves dismissal on that ground alone.
However, the Division Bench of the High Court, after overruling the
objection allowed the appeal preferred by the insurer and reduced the
compensation from Rs. 3,50,000/- to Rs. 3,00,000/-. It is against the
said judgment, the present appeal has been filed by way of special
leave petition.
Learned counsel appearing for the appellant urged that in view
of the fact that under Section 173 of the Motor Vehicles Act, 1988
(hereinafter referred to as ’the Act’), a remedy by way of appeal to the
High Court is available to the insurer against an award given by the
Tribunal, and, therefore, the filing of a petition under Article 227 of the
Constitution was misconceived and deserved dismissal and the High
Court ought not to have entertained and decided the writ petition on
merits. We find merit in the submission.
It is not disputed that under Section 173 of the Act, an insurer
has right to file an appeal before the High Court on limited grounds
available under Section 149(2) of the Act. However, in a situation
where there is a collusion between the claimant and the insured or
the insured does not contest the claim and further if the Tribunal does
not implead the insurance company to contest the claim, in such a
situation it is 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 a claim has been made. If permission is
granted and the insurer is allowed to contest the claim on merit, in
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that case it is open to the insurer to file an appeal against the award
of the Tribunal on merits. Thus, in such a situation, the insurer can
question the quantum of compensation awarded by the Tribunal.
However, learned counsel for the respondent argued that since
an insurer has limited grounds available under Section 173 of the Act,
it is open to an insurer to file a petition under Article 226/227 of the
Constitution.
The right of appeal is a statutory right and where the law
provides remedy by filing an appeal on limited grounds, the grounds
of challenge cannot be enlarged by filing a petition under Article
226/227 of the Constitution on the premise that the insurer has limited
grounds available for challenging the award given by the Tribunal.
Section 149(2) of the Act limits the insurer to file an appeal on those
enumerated grounds and the appeal being a product of the statute it
is not open to an insurer to take any plea other than those provided
under Section 149(2) of the Act (see National Insurance Co. Ltd,
Chandigarh vs. Nicolletta Rohtagi and others 2002(7) SCC 456).
This being the legal position, the petition filed under Article 227 of the
Constitution by the insurer was wholly misconceived. Where a
statutory right to file an appeal has been provided for, it is not open to
High Court to entertain a petition under Article 227 of the Constitution.
Even if where a remedy by way of an appeal has not been provided
for against the order and judgment of a District Judge, the remedy
available to the aggrieved person is to file a revision before the High
Court under Section 115 of the Code of Civil Procedure. Where
remedy for filing a revision before the High Court under Section 115
of CPC has been expressly barred by a State enactment, only in such
case a petition under Article 227 of the Constitution would lie and not
under Article 226 of the Constitution. As a matter of an illustration,
where a trial Court in a civil suit refused to grant temporary injunction
and an appeal against refusal to grant injunction has been rejected,
and a State enactment has barred the remedy of filing revision under
Section 115 C.P.C., in such a situation a writ petition under Article
227 would lie and not under Article 226 of the Constitution. Thus,
where the State legislature has barred a remedy of filing a revision
petition before the High Court under Section 115 C.P.C., no petition
under Article 226 of the Constitution would lie for the reason that a
mere wrong decision without anything more is not enough to attract
jurisdiction of High Court under Article 226 of the Constitution.
The supervisory jurisdiction conferred on the High Courts under
Article 227 of the Constitution is confined only to see whether an
inferior court or Tribunal has proceeded within its parameters and not
to correct an error apparent on the face of the record, much less of an
error of law. In exercising the supervisory power under Article 227 of
the Constitution, the High Court does not act as an Appellate Court or
the Tribunal. It is also not permissible to a High Court on a petition
filed under Article 227 of the Constitution to review or re-weigh the
evidence upon which the inferior court or Tribunal purports to have
passed the order or to correct errors of law in the decision.
For the aforesaid reasons, we are of the view that since the
insurer has a remedy by filling an appeal before the High Court, the
High Court ought not to have entertained the petition under Article
226/227 of the Constitution and for that reason, the judgment and
order under challenge deserves to be set aside. We, accordingly, set
aside the judgment and order under appeal. The appeal is allowed.
There shall be no order as to costs. However, it would be open to the
insurer to file an appeal if it is permissible under the law.
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