Gauhati High Court
Page No.# 1/4 vs Loknath Upadhaya on 4 April, 2022
Page No.# 1/4
GAHC010043372018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/89/2018
CHAMNUR ALI AND 3 ORS.
S/O- LATE DHAN ALI, R/O- BHETAPARA, BARSAJAI, P.S- BASISTHA,
GUWAHATI, KAMRUP(M), ASSAM
2: SAYEDA MERIJANA BEGUM
W/O- LATE PIRANOR ALI
R/O- VILL- BHETAPARA
SARUSAJAI
P.S- HATIGAON
GUWAHATI
KAMRUP(M)
ASSAM
3: BABA AJMER ALI
S/O- LATE PIRANOR ALI
R/O- VILL- BHETAPARA
SARUSAJAI
P.S- HATIGAON
GUWAHATI
KAMRUP(M)
ASSAM
4: BABA SON ALAM
S/O- LATE PIRANOR ALI
R/O- VILL- BHETAPARA
SARUSAJAI
P.S- HATIGAON
GUWAHATI
KAMRUP(M)
ASSA
VERSUS
LOKNATH UPADHAYA
S/O- LATE NANDALAL UPADHAYA, R/O- GAUHATI CLUB, GUWAHATI,
Page No.# 2/4
DIST- KAMRUP(M), ASSAM, PIN- 781003
Advocate for the Petitioner : MR. A K PURKAYASTHA
Advocate for the Respondent : MR. S P ROY
BEFORE
HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA
JUDGMENT AND ORDER
04.04.2022
Hear Mr. A. K. Purkayastha, learned Counsel appearing for the petitioners as well
as Mr. R. P. Sarmah, learned senior counsel representing the respondent.
2. This is an application under Article 227 of the Constitution of India whereby the
order dated 11.05.2020 passed by the learned Munsiff No. 2, Kamrup (M), Guwahati in
Title Execution Case No. 41/2016 re-issuing the writ for recovery of possession of the
decreetal land.
3. The facts necessary for disposal of this petition is as under:
The respondent filed a suit being TS 92/2002 against the petitioners seeking a
declaration of right, title and interest over a plot of land as well as for recovery of
possession of that land. The suit was decreed in favour of the respondents. In the
appellate courts also, the respondent lost. Therefore, execution proceeding was
initiated. The decree was executed accordingly. But subsequently, the petitioners
again encroached upon the land and when the respondent approached the
Executive Court, another writ for recovery of possession was issued.
4. I have gone through the impugned order dated 11.05.2020.
5. Under Article 227 of the Constitution of India, High Court does not hear an
appeal. The power under Article 227 is a supervisory power. High Court exercises this
power when the Courts and the Tribunals subordinate to it does not exercise the
power vested upon them by a statute or when they exceed their power vested upon
them by a particular statute. Under Article 227 of the Constitution of India, High Court
Page No.# 3/4
is not supposed to interfere into any order passed by a subordinate court or by a
Tribunal even if there is any some defects therein.
This is an appeal under Section 173 of the Motor Vehicles Act, 1988 against the
judgment and award dated 31.03.2015 passed by the MACT No. 3, Kamrup, in MAC
Case No. 589/2012.
3. On 08.01.2012, the deceased was travelling in a Santro car bearing registration
no. AS-01-AE-0426. At about 6 AM, the vehicle met with an accident and because of
the injuries sustained by him, he expired. Therefore, the claim petition was filed
before the Tribunal.
4. The Insurance Company contested the case by filing a written statement.
5. The Tribunal framed two issues upon the pleadings of the parties. They read as
under:
(i) Whether the victim (late) Rajib Paul died as a result of the injuries
sustained by him in the alleged road accident dated 08.01.2012 involving
vehicle no. AS-01-AE-0426 (Santro, Xing RLX) and whether the said
accident took place due to under use and involvement of the said
vehicle (sic.)?
(ii) Whether the claimant is entitled to receive any compensation, and if
yes, to what extent and by whom amongst the opposite party, the said
compensation amount will be payable (sic.)?
6. The respondent examined one witness. The Insurance Company did not
adduce any evidence.
7. On the basis of the evidence on record, the Tribunal awarded an amount of
Rs.7,73,000/- along with interest @ 6% per annum from the date of filing of the claim
petition.
8. The appellant Insurance Company has preferred this appeal that the claim
petition was filed under Section 163 A of the M.V. Act of 1988. Even in the prayer
portion of the claim petition, it has been stated that the compensation was paid for
Page No.# 4/4
under the second schedule of the M.V. Act of 1988.
9. The learned counsel Mr. Goswami has submitted that the impugned judgment
has deviated from the mandate of law under Section 163 A of the MV Act. Mr.
Goswami has further submitted that now, according to the Notification issued by the
Ministry of Road, Transport and Highways, in case of a fatal accident, the
compensation shall be Rs.5,00,000/- (Rupees Five Lakhs) only under sub Section 163 A
of the M.V. Act.
10. I have also heard the learned counsel Mr. P. Mahanta, appearing for the
respondents.
11. On a thorough reading of the claim petition, it is clear on the face of the
record that the claim petition was filed under Section 163 A of the M.V. Act not under
Section 166 of the M.V. Act. The claimants/respondents pray before the Tribunal to
award compensation according to the second schedule of the M.V. Act, 1988.
12. Therefore, the claim case is under section 163 A of the M.V. Act, the Tribunal
erroneously held the annual income of the deceased at Rs.54,000/- whereas the
statutory limit for income is Rs.40,000/- only.
13. Therefore, the claimants are entitled to Rs.5,00,000/- (Rupees Five Lakh) only as
compensation. The impugned judgment is modified accordingly to that extent.
14. The appeal is partly allowed. The appellant shall be entitled to a
compensation of Rs.5,00,000/- (Rupees Five Lakh) only along with interest @ 6% per
annum from the date of filing of the claim petition.
15. In the light of the aforesaid observation, the cross objection is also disposed of
accordingly.
16. The appeal along with the cross objection is disposed of.
17. The LCR be returned.
JUDGE
Comparing Assistant
