Madhya Pradesh High Court
Smt. Sangeeta Namdev vs Indrapath @ Munna Yadav on 31 January, 2023
Author: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 31ST OF JANUARY, 2023
CIVIL REVISION No.72 of 2023
Between:-
1. SMT. SANGEETA NAMDEV W/O LATE
SHIVKUMAR NAMDEV, AGED ABOUT 40
YEARS, OCCUPATION: HOUSEWIFE
KACHHERI ROAD LAKHNADON DISTRICT
SEONI (MADHYA PRADESH)
2. KU. ASHTHA NAMDEV D/O LATE SHIVKUMAR
NAMDEV, AGED ABOUT 9 YEARS,
OCCUPATION: GUARDIAN MOTHER SMT.
SANGEETA NAMDEV R/O KACHHERI ROAD
LAKHNADON DISTRICT SEONI (MADHYA
PRADESH)
.....APPLICANTS
(BY SHRI BALRAM VISHWAKARMA, ADVOCATE)
AND
1. INDRAPATH @ MUNNA YADAV S/O SHRI
JAGARDEV YADAV, AGED ABOUT 40 YEARS,
VILLAGE DHUVAIYA PUKHRA POLICE
STATION CHOWK GHAT DISTRICT BANARAS
AT PRESENT GORAPARA TEHSIL SAIDPUR
DISTRICT GAJIPUR TRUCK DRIVER UP 65 AT
6993 (UTTAR PRADESH)
2. SHYAM KUMAR SONKAR S/O LATE RAMU
SONKAR R/O HOUSE NO. S23/66 DILVARIYA
CHOWKIGHAT DISTRICT BANARAS TRUCK
OWNER UP-65-AT-6993 (UTTAR PRADESH)
3. RELIANCE GENERAL INSURANCE CO. LTD.
KHANUJA TOWER FIRST FLOOR IN FRONT OF
STANDARD MARUTI SHOW ROOM NAPIER
Signature Not Verified
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2
TOWN JABALPUR DISTRICT JABALPUR
TRUCK INSURER UP 65-AT-6993 (MADHYA
PRADESH)
.....RESPONDENTS
_____________________________________________________________
This revision coming on for hearing this day, the court passed
the following:
ORDER
Heard learned counsel for the applicants/claimants on the question
of maintainability of instant Civil Revision which has been filed on
20.01.2023 seeking enhancement of Rs.95,000/- in the final award dtd.
27.1.2017 passed by MACT, Lakhnadaun, Distt. Seoni in claim case no.
41/2014, whereby an award of Rs. 34,15,616/- has been passed.
2. Learned counsel for the applicants submits that he wanted to file
Misc. Appeal but in the light of objections being raised by the Registry of
this Court in the light of decision/order dtd. 07.03.2022 passed by
coordinate Bench at Indore in Misc. Appeal no. 814/2022 (Uzer Khan
Vs. Faruq and others), the petitioners have preferred the instant civil
revision and as per this decision, the amount in dispute being less than
Rs.1,00,000/-, the civil revision is maintainable.
3. I have carefully gone through the order in the case of Uzer Khan
(supra), which is based upon decision/order dtd. 21.11.2016 passed by
coordinate Bench at Gwalior in M.A. 1096/2016 (Netram Vs. Rajendra
Singh Yadav and others) and another decision of coordinate Bench of
High Court of Himachal Pradesh in the case Pala Ram Vs. Punjab
Roadways and another 2007 ACJ 983. I have also gone through both
the decisions in the case of Netram (supra) and Pala Ram (supra), but in
both these decisions the objection of maintainability raised by the
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Registry, has been overruled and the Misc. Appeals of the claimants have
been held to be maintainable.
4. The decision given by coordinate Bench of this Court in the case of
Netram (supra) has in fact considered and followed another coordinate
Bench decision of Rajasthan High Court in the case of Ghanshyam Vs.
Additional District Judge, MACT Cases 2009 ACJ 1946, relevant
paras 8 and 9 of which are as under :-
"8. Per Sub-section (1) of Section 173, any person aggrieved by the award of the
Claims Tribunal could prefer appeal to the High Court within 90 days from the date of
award. The provisos to Sub-section (1) of Section 173 are to the effect that no appeal
by the person who is required to pay any amount under the award would be enter-
tained by the High Court unless a sum of Rs.25,000 or 50 per cent of the award
amount, whichever be the less, has been deposited; and that the appeal could be enter-
tained even after expiry of period of 90 days upon the appellant satisfying the High
Court that he was prevented by sufficient cause from preferring the appeal in time.
Sub-section (2) of Section 173, however, bars an appeal if the amount in dispute in the
appeal is less than Rs.10,000. It is not the award amount that Sub-section (2) of Sec-
tion 173 refers to; but it is the amount in dispute in appeal that alone is relevant.
9. The Tribunal in the present case has awarded to the petitioner an amount of Rs.
9,000 together with interest at the rate of 7.5 per cent per annum. Even if the compo-
nent of interest is left aside and the principal amount as awarded by Tribunal is taken
into consideration, the fact remains that the said amount of Rs.9,000 is the one that
has been awarded to the petitioner and is not the amount in dispute. If the said award
amount of Rs.9,000 alone was sought to be questioned in appeal by the person(s)
against whom the award has been made, may be the question of competence of such
an appeal would have arisen for the bar as spelt out in Sub-section (2) of Section 173
of the Act. The non-applicants are not questioning the award amount and the said
amount of Rs. 9,000 as awarded by the Tribunal is not at all the amount in dispute in
this matter. Reference to the decision in Illapu Seethamma's case, 2001 ACJ 328 (AP),
appears to be entirely misplaced. The said common judgment relates to nine appeals
preferred by the insurer of the vehicle involved in the accident against whom the
award had been made by concerned Tribunal; and in the said decision, such appeals
(four in number) wherein the amount in dispute was found to be less than Rs.10,000
were held to be incompetent. In the present case, the person against whom the award
has been made is not challenging the award; but it is the claimant-petitioner who is
seeking enhancement over the award amount."
5. The decision/interim order dtd. 21.11.2016 given by coordinate
Bench of this Court at Gwalior in the case of Netram Vs. Rajendra
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Singh Yadav & Others M. A. No. 1096/ 2016 is reproduced in toto as
under :-
"Heard learned counsel for the appellant on the objection raised by the Registry that
since the claim amount awarded by the Tribunal is only Rs.6,000/-, therefore, as per
the judgment of the Special Bench in the case of National Insurance Co. Ltd., Gwalior
Vs. Shrikant & Others as reported in 2007(2) JLJ 138, appeal is not maintainable as
award is less than Rs.10,000/-.
Learned counsel for the appellant has submitted that ratio of the judgment in the case
of National Insurance Co. Ltd., Gwalior (Supra) is not applicable to his case because
present appeal has been filed by the claimant. Further, the claim before the Tribunal
was Rs.15,70,000/- and if the amount awarded is Rs.6,000/-, then respondents were
debarred from filing an appeal and not the claimant in terms of the provisions of
Section 173(2) of the Motor Vehicle Act. Learned counsel has further submitted that
in fact Section 173(2) of the Motor Vehicle Act provides that no appeal is
maintainable against any award of Claims Tribunal, if the amount in dispute in the
appeal is less than Rs.10,000/-, therefore, it has been held that where the remedy of
appeal is not available under Section 173(2) of the Motor Vehicle Act, 1988,
aggrieved party has a remedy of Revision under Section 115 of C.P.C.
Learned counsel for the appellant has placed reliance on the judgment of High Court
of Himachal Pradesh at Shimla in the matter of Pala Ram Vs. Punjab Roadways &
Another as reported in 2007 ACJ 983, wherein it has been held that appeal will be
barred if the amount claimed is less than Rs.10,000/-.
In the present case, appellant had since claimed a sum of Rs.15,70,000/- before the
Tribunal and was awarded only a sum of Rs.6,000/-, therefore, the dispute is with
regard to Rs.15,70,000/- (-) Rs.6,000/- i.e. Rs.15,64,000/-. Thus, the disputed amount
in the appeal filed by the claimant is the enhanced claim in the appeal or in case where
the claim petition has been dismissed, the total amount claimed in the claim petition.
It is not the amount awarded which will determine whether appeal is maintainable
under Section 173(2) or not, therefore, the objection was rejected.
Similarly, in the case of Ghanshyam Vs. Additional District Judge (Fast Track) No.4,
M.A.C.T. Cases, Jodhpur & Others as reported in 2009 ACJ 1946, a Bench of
Rajasthan High Court has held that it is not the award that is referred to in Section
173(2) of the Motor Vehicle Act, but the amount in dispute and therefore, if the
amount in dispute is more than Rs.10,000/-, the appeal is maintainable.
Even otherwise the judgment in the case of National Insurance Co. Ltd., Gwalior
(Supra) categorically holds that-
"High Court shall not, under this Section, follow or reverse any order made,
or any order deciding an issue, in the course of a suit or other proceeding
except where:
a) the order, if it had been made in favour of the party applying for
revision, would have finally disposed of the suit or other proceedings; or
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b) the order, if allowed to stand, would occasion a failure of justice or
cause irreparable injury to the party against whom it was made."
Thus, there are limitations in Revision and in the light of those
limitations, as mentioned in Para-18 of the judgment in the case of
National Insurance Co. Ltd., Gwalior (Supra), wherein it has been
held that- "award passed will not be disturbed unless following
grounds are made-out by the petitioner: i) the award so passed is
without jurisdiction or in excess of jurisdiction vested with the
Tribunal; ii) the award so passed, if allowed to stand, would occasion
in failure of justice or cause irreparable injury to the party against
whom it was made."
In the present case, looking to the limitations in the Revision and the fact that the
purpose of provisions contained in Section 173(2) of the Motor Vehicle Act, is to
discourage appeals by the owner, driver and the insurer for petty amounts. It cannot be
said that a claimant can be rendered remedy less, therefore, if the objection is not
overruled, then it will amount to miscarriage of justice, therefore, the objection
pointed out by the Registry is overruled. In the result, appeal is maintainable."
6. The decision given by Coordinate Bench of Himachal Pradesh
High Court in the case of Palaram (supra) 2007 ACJ 983 is also
reproduced in toto as under :-
"This appeal by the claimant has been filed against the award of the learned Motor
Accident Claims Tribunal-I, Kangra at Dharamshala (H.P.) in M.A.C. Petition No. 54-
G/II of 1998 decided on 1.3.2001 whereby the claimant has been awarded only Rs.
7,000 as compensation and, therefore, this appeal.
2. First of all I shall deal with the preliminary objection raised by the learned Counsel
for the respondents that the appeal is not maintainable as the amount awarded is less
than Rs. 10,000.
Section 173(2) of the Motor Vehicles Act reads as follows:
"173. Appeals.--(1) xxx xxx xxx
(2) No appeal shall lie against any award of a Claims Tribunal if the amount in dis-
pute in the appeal is less than ten thousand rupees."
3. Mr. Sharma relies upon this section to submit that the disputed amount being less
than Rs. 10,000, the appeal is not maintainable. Reliance is also placed on the judg-
ment of this Court in Mittar Singh v. Ashish Kumar, I (1998) ACC 523=1998 ACJ
1200 (HP) and the judgment of Karnataka High Court in Ramaiah Setty v. Prakash, II
(1991) ACC 728 (DB)=1991 (1) TAC 478.
4. In my opinion the argument raised is totally misconceived and ill-founded. The
words used in Section 173(2) are that the amount in dispute in appeal is less than Rs.
10,000. In the present case the claimant in his claim petition had claimed compensa-
tion of Rs. 80,000. He has been awarded Rs. 7,000. He now in appeal claims compen-
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sation as claimed by him in the claim petition. Therefore, the dispute is with regard to
Rs. 73,000 and not Rs. 7,000. The judgments relied upon by Mr. Sharma are not at all
relevant for the decision of this case since in both those cases the appeals were filed
by the owners of the vehicles and the award was less than the stipulated amount.
When a driver, owner or Insurance Company files an appeal then obviously if the
award is less than Rs. 10,000 the dispute is with regard to an amount less than Rs.
10,000. However, when the claimant comes up in appeal for enhancement he is claim-
ing the amount claimed by him in the claim petition and if that amount is more than
Rs. 10,000 the appeal will be maintainable. The disputed amount in an appeal filed by
the claimant is the enhancement claimed in the appeal or in case where the claim peti -
tion has been dismissed the total amount claimed in the claim petition. It is not the
amount awarded which will determine whether appeal is maintainable under Section
173(2) or not. It is the amount which is in dispute in the appeal which will determine
whether the appeal is maintainable. Therefore, in my opinion this objection has no ba-
sis and is accordingly rejected.
5. Coming to the facts of the present case it stands proved on record that the claimant
was aged about 80 years. In the accident he suffered fracture of the femur. He re-
mained admitted in the hospital from 25.6.1998 to 9.7.1998. The discharge summary
has been proved by the doctor as Exh. PW 3/A. It has also been proved on record that
the claimant has suffered permanent disability to the extent of 10 per cent. The Tri -
bunal has awarded him only Rs. 7,000. In fact, in a case of permanent disability the
Tribunal could not have awarded less than Rs. 25,000 which was the amount payable
to the claimant as no fault liability under Section 140. No doubt the claimant is aged
80 years and, therefore, there will be no loss of income to him on account of the dis -
ability. However, he definitely has to be compensated for the period he remained in
hospital, the expenses for medicines and attendant charges and also for pain and suf-
fering and loss of amenities and future discomfort. Since the claimant is old man it is
not necessary to determine the compensation under various heads.
Keeping the entire evidence in view and the fact that the claimant remained admitted
in hospital for about 15 days and even on discharge had to wear a brace and suffered
permanent disability of 10 per cent it would be just and reasonable to award Rs.
40,000 to him. The claimant shall also be entitled to interest on this amount at the rate
of 9 per cent per annum w.e.f. the filing of the claim petition, i.e., 26.8.1998 till de -
posit of the amount.
6. In view of the above discussion, the appeal is allowed and the compensation is en-
hanced from Rs. 7,000 to Rs. 40,000 along with interest as aforesaid. No costs."
7. Relying upon the decision in the case of Netram (supra),
coordinate Bench of this Court at Indore in the case of Pappu Jadhav s/o
Malsingh Jadhav vs. Dharmendra Chouhan & two others MA
No.2056/2021 has passed interim order on 08.03.2022 and held the
claimant's misc. appeal to be maintainable, which is also reproduced in
toto as under :-
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"Today the appeal is listed on the question of office objection regarding
maintainability of the appeal.
This appeal has been filed for enhancement of the award dated 30.06.2021 passed by
Iind Additional M.A.C.T, Khargone in Claim Case No.136/2018.
Counsel for the appellant placing reliance over the judgment in the case of Sanobanu
Nazirbhai Mirza and others vs. Ahmedabad Municipal Transport Service reported in
2013 ACJ 2733 and the order passed by the Gwalior Bench of this Court in M.A
No.1096/2016 (Netram vs. Rajendra Singh Yadav & others) and submits that the
appeal is maintainable and the office objection is to be ignored.
After hearing learned counsel for the parties and going through the decisions cited by
the counsel for the appellant, I find substance in the arguments advanced by the
appellant. In the present case, since appellant had claimed a sum of Rs.20 lakhs before
the Tribunal and the Tribunal had awarded only a sum of Rs.14,80,000/-, therefore,
the dispute is with regard to Rs.20,00,000 - (minus) Rs.14,80,000/- i.e. Rs.5,20,000/-.
Thus, the disputed amount in the appeal filed by the claimant is the enhanced claim in
the appeal.
The purpose of provision contained in section 173 (2) of the MV Act is to discourage
appeals by the owner, driver and the insurer -2- for petty amounts. Hence, relying on
the decision in the case of Netram (supra), the office objection is overruled."
8. In another decision in case of NEW INDIA ASSURANCE CO.
LTD VERSUS MEGHNATH AND ANOTHER AIR 2001 MADHYA
PRADESH 36, coordinate Bench of this Court has held as under :-
"20. In the instant case, the claim proceedings were instituted subsequent to the enact-
ment of 1988 Act hence the maintainability of appeal would be governed by the provi-
sions of S. 173(2). Section 173(2) specifically bars filing of an appeal if the amount of
compensation is less than Rs. 10,000/-. The provision has been enacted in order to
save the claimants from the hierachy of the Courts and mutliplication of the expenses
incurred at different levels. Therefore, in its wisdom the legislature has considered it
fit and proper that if the amount is less than Rs. 10,000/- finality be attached to the
awards passed by the Claims Tribunal. If it is held that revision is maintainable at the
behest of the insurer or other persons liable to pay the compensation, where the
amount is less than Rs. 10,000/- the intent of the legislature would be defeated in its
letter and spirit."
9. In the case of VARGHESE DEVASSIA VERSUS JOSSY
VARGHESE 2019 (1) KLT 769 Division Bench of Kerala High Court
has held as under :-
"11. We accordingly hold that the restriction contained in sub-section (2) of Section
173 of the Act can have no application to appeals filed by claimants in this court
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seeking enhancement of the compensation awarded by the Motor Accidents Claims
Tribunal and that the said provision will apply only to appeals filed by the
owner/driver/insurer of the motor vehicle involved in the accident who have been held
liable by the Tribunal to pay the compensation awarded by it. Consequently, we
overrule the objection raised by the Registry and direct the Registry to number the
appeal and the accompanying application and to send up the application to condone
the delay for hearing as per roster after the ensuing Onam vacation. We also place on
record our appreciation of the valuable assistance rendered by Sri. Mathews Jacob,
learned Senior Advocate."
10. The Supreme Court has in the case of K.P. Manu vs. Chairman,
Scrutiny Committee For Verification Of Community Certificate
(2015) 4 SCC 1 held as under :-
"48. When a binding precedent is not taken note of and the judgment is rendered in
ignorance or forgetfulness of the binding authority, the concept of per incuria comes
into play. In A.R. Antulay v. R.S. Nayak[(1988) 2 SCC 602], Sabyasachi Mukherji, J.
(as His Lordship then was) observed that:
"42. .... 'Per incuriam' are those decisions given in ignorance or forgetfulness
of some inconsistent statutory provision or of some authority binding on the
court concerned, so that in such cases some part of the decision or some step
in the reasoning on which it is based, is found, on that account to be demon-
strably wrong."
At a subsequent stage of the said authority, it has been held that:
"47. .... It is a settled rule that if a decision has been given per incuriam the
court can ignore it."
11. The Supreme Court has in the case of Rajasthan Public Service
Commission and another Vs Harish Kumar Purohit and Others
(2003) 5 SCC 480 held as under :-
"14. The position was highlighted by this Court in a three-judge Bench decision in
State of Tirpura v. Tripura Bar Association and Ors. (1998(5) SCC 637) in the follow-
ing words :
"We are of the view that the Division Bench of the High Court which has de-
livered the impugned judgment being a coordinate Bench could not have
taken a view different from that taken by the earlier Bench of the High Court
in the case of Durgadas Purkayastha v. Hon'ble Gauhati High Court (1988(1)
Gau LR 6). If the latter Bench wanted to take a view different than that taken
by the earlier Bench, the proper course for them would have been to refer the
matter to a larger Bench. We have perused the reasons given by the learned
Judges for not referring the matter to a larger Bench. We are not satisfied that
the said reasons justified their deciding the matter and not referring it to the
larger Bench. In the circumstances, we are unable to uphold the impugned
judgment of the High Court insofar as it relates to the matter of inter se se-
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niority of the Judicial Officers impleaded as respondents in the writ petition.
The impugned judgment of the High Court insofar as it relates to the matter of
seniority of the respondent-Judicial Officers is set aside. The appeals are dis-
posed of accordingly. No costs."
15. In the instant case, the position is still worse. The latter Bench did not even indi -
cate as to why it was not following the earlier Bench judgment though brought to its
notice. Judicial propriety and decorum warranted such a course indicated above to be
adopted."
12. The Full Bench of this Court has in the case of WALI
MOHAMMED AND ETC. VERSUS BATULBAI AND ETC. 2003 (2)
MPLJ 513 (FB) held as under :-
"4. Taking the last question (No. iv) first, at the outset it may be stated that the answer
to this question is contained in a recent Full Bench decision of this Court in the case
of Jabalpur Bus Operators' Association v. State of Madhya Pradesh, (2003) 1 Jab LJ
105 : (AIR 2003 Madh Pra 81), wherein it is held :
"With regard to High Court, a Single Bench is bound by the decision of an-
other Single Bench. In case he does not agree with the view of other Single
Bench, he should refer the matter to Larger Bench. Similarly, Division Bench
is bound by the judgment of earlier Division Bench. In case it does not agree
with the view of the earlier Division Bench, it should refer the matter to
Larger Bench. In case of conflict between the judgments of two Division
Benches of equal strength, the decision of earlier Division Bench shall be fol-
lowed except when it is explained by the latter Division Bench in which case
the decision of latter Division Bench shall be binding. The decision of Larger
Bench is binding on smaller Benches".
Needless to say that what is said about the decisions of Division Bench shall also ap-
ply in case of conflict between judgments of two Single Benches. So in case of con-
flict between two decisions of the High Court rendered by the Benches of equal
strength (be it a Full Bench, Division Bench or Single Bench), the decision earlier in
time shall hold the field unless it is referred and explained in the latter decision in
which case the latter one shall be binding."
13. A coordinate Bench of this Court has in the case of BALWANT
SAHEBLAL KHAWSE VERSUS STATE OF MADHYA PRADESH
2001 (3) MPLJ 414 held as under :-
"8. As demonstrated earlier the statutory legal position, as it exists today, is that the
offence under S. 7(1)(a)(ii) of the Act which is punishable with imprisonment for
seven years is non-bailable. The question is whether the view taken in the four cases
referred to above should be followed by this Bench or there is scope for clarification
without referring the matter to a larger Bench. It is axiomatic that a decision is an au-
thority for the question of law which it decides and not for a question which was not
raised or considered. A sub-silentio order or assumption in disregard of a clear and un-
ambiguous statutory provision is not a precedent. If a provision in a statute is con-
strued or interpreted one way or the other that would be a precedent for the future and
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would be binding on co-ordinate benches. But something which has been assumed
and not decided cannot be considered as authoritative binding precedent."
14. In view of the aforesaid legal position it is clear that earlier
coordinate Bench decision dtd. 21.11.2016 given in the case of Netram
(supra) was having binding effect and was to be followed and relied upon
in the case of Uzer Khan (supra) decided on 07.03.2022 but despite
making mention of Netram's case in the case of Uzer Khan, the ratio of
Netram's case has not been taken into consideration, therefore, in my
considered opinion in presence of decision in the case of Netram (supra),
the decision in the case of Uzer Khan (supra) deserves to be ignored
being per incuriam.
15. So far as the question of maintainability of misc. appeal in the light
of section 173(2) of the Motor Vehicles Act, 1988 is concerned, it has no
nexus with the appeal filed by the claimant(s) and this provision is
applicable only to the non-claimants i.e. insurer, owner, driver or any
other person liable to pay the amount of award, and merely because of
the fact that the amount awarded by learned tribunal is less than 1 lac or
misc. appeal is filed by claimant(s) for enhancement of rupees less than 1
lac, the same cannot be treated as a bar for filing misc. appeal by the
claimant(s), as contained in sub-section (2) of Section 173 of the Act, and
such amount cannot be said to be an amount in dispute for the appeal(s)
filed by the claimants.
16. Resultantly, the instant Civil Revision is hereby held to be not
maintainable.
17. However, as per prayer made by learned Counsel for the applicants,
the Registry is directed to convert instant Civil Revision into Misc.
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Appeal and to re-register the same accordingly. Certainly, the applicants
have to pay the requisite court fee on the amount claimed in the misc.
appeal.
(DWARKA DHISH BANSAL)
JUDGE
RS
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