JUDGMENT
V.K. Gupta, C.J.
1. A Division Bench of this Court in the case of United India Insurance Co. Ltd. v. Sumitra Devi 2003 ACJ 262 (HP), while dealing with the respondents objection to the maintainability of a writ petition filed under Articles 226/227 of the Constitution of India by an insurance company against an award passed by the Motor Accidents Claims Tribunal in which the insurer-petitioner had assailed the award only on the issue of quantum of compensation, held that such a petition under Article 226 of the Constitution filed by an insurance company questioning the quantum of compensation determined by the Tribunal is maintainable. To appreciate the exact ratio in the aforesaid Division Bench judgment, we reproduce para 2 of the judgment which spells out the fact of the award being challenged only on the question of quantum of compensation awarded and yet a petition under Articles 226/227 of the Constitution, despite the existence of Section 173 of the Motor Vehicles Act, 1988, being filed to challenge this award. Para 2 reads thus:
Before coming to the facts of the case we may observe that petitioner insurance company has challenged the award only on its quantum and reason pleaded for maintaining this writ petition is that petitioner cannot challenge the award impugned on quantum in view of Section 149(2) of the Motor Vehicles Act, 1988 by filing an appeal under Section 173 thereof.
2. After having noticed the aforesaid issue of law involved in this case, the Division Bench proceeded to reproduce the basic, elementary, but rival contentions of the learned Counsel for the writ petitioner (insurer) and the respondents (claimants). First, the contention of the writ petitioner, insurer, as contained in para 7 of the judgment reads thus:
On the question of maintainability of this writ, Mr. Anand Sharma, learned Counsel for petitioner forcefully urged that if the impugned award is allowed to stand and objection of Mr. Thakur is upheld that this writ at the instance of insurance company is not maintainable so far as quantum is concerned, (unless case was covered under Section 170 of the Motor Vehicles Act and permission had been obtained), the result will be disastrous. He further submitted that this Court shall have to put its seal of approval whether the award is perverse, absurd, ridiculously low or abnormally excessive. This can never be the intention of any legislation including provisions of Motor Vehicles Act, even when defences of the petitioner are limited. He further submitted that Tribunal being subordinate to this Court, even in an appropriate case where otherwise it comes to the notice of this Court that an absurd, perverse, abnormal, or excessive award has been passed, the court would certainly exercise its jurisdiction of superintendence and control with a view to keep Tribunal below within the bounds of its limit; otherwise it will result in failure of justice, besides putting premium on such award.
3. The learned Counsel for the respondents, with a view to canvass his point of view that the petition was not maintainable argued thus:
Mr. N.K. Thakur with a view to support his submission that this petition is not maintainable in law, placed reliance on the provisions of Section 149(2) of the Motor Vehicles Act, 1988 and submitted that keeping in view the defences open to the petitioner, it cannot be said to be a person aggrieved by award. He further submitted that what is not permitted by the Motor Vehicles Act, 1988 should not be permitted by circumventing provisions of said Act and by invoking Articles 226/227 of the Constitution of India.
According to him legislature was well aware when defences of the insurance company were limited under Section 149 (supra) of all the situations as well as grounds on which the impugned award has been challenged by the petitioner and not permitting it to challenge on such grounds. He referred to Full Bench decision of Madhya Pradesh High Court in New India Assurance Co. Ltd. v. Rafeeka Sultan 2001 ACJ 648 (MP). In this judgment revision of the insurance company was dismissed after considering the legal position as well as catena of case-law.
4. The sum and substance of the ratio as laid down by the Division Bench is contained in para 10 of the judgment which reads thus:
We would have gone into and dealt with this judgment. However, for the reasons to be recorded hereinafter, we think that no benefit can be derived by Mr. Thakur from this decision. Reason being that the power of High Court under Articles 226 and 227 of the Constitution of India is plenary in nature and the provisions of the Motor Vehicles Act do not in any case either prohibit or oust such jurisdiction. Looking to the award we are satisfied that it is abnormally excessive and cannot stand test of judicial scrutiny on well settled principles of assessment.
5. After culling out precedents from various judgments of the High Courts and the Supreme Court the Division Bench finally held as under:
The letter and spirit of Articles 226/227 admit of no limitation on the power of the High Courts for exercise of the power of judicial review and as a matter of fact, no decision is required to state that the award or decision of a Motor Accidents Claims Tribunal is not immune from judicial review.
6. It is the aforesaid judgment of the Division Bench of this Court in Sumitra Devi 2003 ACJ 262 (HP), which has come up before us for reconsideration in the light of a latest three-Judge Bench judgment of the Supreme Court in the case of Sadhana Lodh v. National Insurance Co. Ltd. 2003 ACJ 505 (SC).
7. Before we proceed any further to reconsider the correctness of the Division Bench judgment in Sumitra Devi, 2003 ACJ 262 (HP), in the light of the aforesaid Apex Court judgment in Sadhana Lodh, 2003 ACJ 505 (SC), we must categorically spell out the exact point which has fallen for our consideration while examining the correctness of the aforesaid Division Bench judgment. The point is as follows:
Is it open to an insurer by filing a petition under Articles 226/227 of the Constitution, to challenge an award passed by the Motor Accidents Claims Tribunal only on the question that the compensation awarded by the Claims Tribunal in favour of the claimants, including the interest awarded thereupon or the amount of costs, etc., is excessive or on the higher side, in view of the limited right of appeal available to such an insurer under Section 173 of the Motor Vehicles Act, 1988, the right of appeal being limited to the defences as available and specified in Section 149(2) of the Act?
8. While dealing with the aforesaid question, in Sadhana Lodh, 2003 ACJ 505 (SC), their Lordships of the Supreme Court before discussing law on the subject, summed up the question which fell for their consideration, as under:
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.
9. Undoubtedly, the issue involved for consideration in the aforesaid judgment before the Supreme Court, even though related to the extent of the right of appeal available to an insurer under Section 173 of the Act, and the corresponding limitations upon the insurer not being able to extend this right, or enlarge its scope in view of the restricted and specified defences as available under Section 149(2) of the Act, the case, pure and simple, on facts, arose from a situation based on a direct issue of the insurer actually challenging in the High Court, by filing a petition under Article 226 of the Constitution, the award of the Tribunal only on the ground of the compensation as determined by the Tribunal being on the higher side, and the Division Bench of the High Court in appeal against the judgment of the learned single Judge reducing the compensation amount from Rs. 3,50,000 to Rs. 3,00,000. The issue which thus fell for consideration before their Lordships in Sadhana Lodh, 2003 ACJ 505 (SC), was whether it was permissible for the High Court, in exercising its jurisdiction under Article 226 to reduce (or for that matter to increase) the quantum of compensation as awarded by the Tribunal.
10. It is in this light that an argument was raised before the Supreme Court that since an insurer has limited grounds of appeal available to it under Section 173 of the Act, and even if by availing any of these grounds, an insurer cannot, by way of filing an appeal under Section 173 of the Act, challenge the award questioning the quantum of compensation awarded by the Tribunal, it should be open and permissible to an insurer to file a petition under Articles 226/227 of the Constitution. This argument raised on behalf of the insurer was repelled by their Lordships of the Supreme Court in the manner as indicated in para 6 of the judgment, which we reproduce herein below:
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 Articles 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. v. Nicolletta Rohtagi 2002 ACJ 1950 (SC). 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 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 Code of Civil Procedure 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, Civil Procedure Code, 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, Civil Procedure Code, 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.
11. Their Lordships of the Apex Court, therefore, have clearly and categorically held and decided that for whatever reasons the grounds of challenge with respect to an award cannot be enlarged by an insurer by filing a petition under Articles 226/227 of the Constitution on the premise that insurer having limited grounds available to it under Section 173 of the Act, it is therefore permissible for it by invoking the extraordinary jurisdiction of the High Court to extend or enlarge the grounds by taking recourse to the remedy of filing a petition under Articles 226/227 of the Constitution. This has been held impermissible.
12. The aforesaid proposition of law thus sets at rest any controversy, or doubt about the maintainability of any such petition under Articles 226 or 227 of the Constitution and, therefore, the Division Bench judgment of this Court in Sumitra Devi, 2003 ACJ 262 (HP), taking a view contrary to the aforesaid view of the Apex Court, is hereby overruled. The overruling of the judgment in Sumitra Devi, or for that matter reliance placed by us (in doing so) upon the ratio in Sadhana Lodh, 2003 ACJ 505 (SC), does not and cannot mean that, apart from an award based on any question relating to the quantum of compensation not being liable to be challenged by an insurer in a petition filed under Articles 226/227 of the Constitution of India, the doors of this Court are always completely shut to a person, including an insurer, in invoking this Courts extraordinary jurisdiction under Articles 226/227 of the Constitution where such a person, including an insurer satisfies this Court that the award is a complete perversity, or a nullity in the eyes of law, or that either the Tribunal has had no jurisdiction in passing the award, or the award has been passed on grounds and for reason which, on the touchstone of any constitutional or legal provision or even a provision in common law, cannot stand judicial scrutiny. For instance, where an insurer approaches this Court by filing a petition under Articles 226/227 of Constitution of India assailing an award of the Tribunal on the ground that, contrary to all principles as are found in the law of Torts or those relating to fixing tortious liability, the claimant had no cause to prefer any claim at all, or that there was no wrong done by any one, not the least by the insurer respondent, as far as the alleged causing of the alleged injuries or for that matter even the factum of the accident was concerned. For instance, in a case like C.W.P. No. 679 of 2001 (which is one of the cases referred to this, Full Bench for consideration) where a truck driver while driving a truck died because of a mishap not attributed to any one else, and despite admitted case of the legal heirs of the deceased truck driver that this accident did not occur on account of any rashness or negligence of anyone (because no other vehicle or no other person was involved in the causing of this mishap), the claim petition was nonetheless filed by the legal heirs of the deceased truck driver against the insurer respondent (and the insurer of the truck alone was made the sole respondent in the claim petition), and despite the insurer respondent raising the objection as to the maintainability of the claim petition and the Tribunal having actually framed an issue to that effect, an award was nonetheless passed against the insurer.
13. In such like cases, where the award on the face of it being perverse, and scope, purview and operation of Section 173 of the Motor Vehicles Act being what it is (totally restrictive), the only remedy available to an insurer naturally would be to challenge the award by approaching this Court by invoking this Courts extraordinary jurisdiction under Articles 226/227 of the Constitution because the power of judicial review vesting in this Court in such like cases cannot be abdicated and should not be considered obliterated and hence it would become the duty of this Court to exercise this power.
14. Taking another fact situation, by way of citing another reference, when it is brought to the notice of this Court by invoking its extraordinary jurisdiction under Articles 226/227 of the Constitution that a fraudulent act was committed in obtaining the award against the insurer or that otherwise a fraud was committed upon the insurer and either, under the provisions of the Motor Vehicles Act, 1988 or otherwise, insurer has no remedy of either approaching the Tribunal for reviewing or recalling of the award because of the absence of any statutory provision to that effect, or that the scope of the appeal under Section 173 of the Act is so limited as to exclude the consideration of any such contingency or situation, this Court cannot and should not hesitate in entertaining the petition and granting or moulding the relief appropriately. In this connection, reference may be invited to a judgment of the Apex Court in the case of United India Insurance Co. Ltd. v. Rajendra Singh 2000 ACJ 1032 (SC), wherein their Lordships, while dealing with a similar situation where the insurance company undoubtedly had no other alternative (because the Tribunal had refused to open its doors to the insurer on the ground of the absence of any power to review or recall the award as originally passed), had the following observations to make and we quote:
For a High Court in India to say that it has no power even to consider the contention that the awards secured are the by-products of stark fraud played on a Tribunal, the plenary power conferred on the High Court by the Constitution may become a mirage and peoples faith in the efficacy of the High Courts would corrode. We would have appreciated if the Tribunal or at least the High Court had considered the pleas and found them unsustainable on merits, if they are meritless. But when the courts preempted the insurance company by slamming the doors against it, this Court has to step in and salvage the situation.
It was further observed:
Thus, the Tribunal refused to open the door to the appellant company and the High Court declined to exercise its writ jurisdiction which is almost plenary for which no statutory constrictions could possibly be imposed. If a party complaining of fraud having been practised on him as well as on the court by another party resulting in a decree, cannot avail himself of the remedy of review or even the writ jurisdiction of the High Court, what else is the alternative remedy for him? Is he to surrender to the product of the fraud and thereby become a conduit to enrich the imposter unjustly? The learned single Judge who indicated some other alternative remedy did not unfortunately spell out what is the other remedy which the appellant insurance company could pursue with.
Finally, it was held as under:
It is unrealistic to expect the appellant company to resist a claim at the first instance on the basis of the fraud because appellant company had at that stage no knowledge about the fraud allegedly played by claimants. If the insurance company comes to know of any dubious concoction having been made with the sinister object of extracting a claim for compensation, and if by that time the award was already passed, it would not be possible for the company to file a statutory appeal against the award. Not only because of bar of limitation to file the appeal but the consideration of the appeal even if the delay could be condoned, would be limited to the issues formulated from the pleadings made till then.
15. It, therefore, becomes abundantly clear that in all such like cases where the award on the face of it is a perversity, or is based on fraud, and the insurance company has no remedy under the Motor Vehicles Act of either challenging the award in appeal or being either to have it recalled or reviewed by the Tribunal itself, the power of judicial review by this Court in the exercise of its extraordinary jurisdiction under Articles 226/227 of the Constitution can always be invoked and exercised by this Court in dispensing justice to the parties.
16. For the foregoing reasons, therefore, while dealing with the reference made to us vide single Bench order dated 18.7.2003, we hold that with respect to an insurer, if it challenges the award passed by the Motor Accidents Claims Tribunal only on the ground of compensation being high, excessive or unreasonable, in a petition filed under Articles 226/227 of the Constitution, such a petition in view of Section 173 of Motor Vehicles Act, 1988 is not maintainable. This was the limited, rather the only question of law, which was referred to us for consideration and we have answered it accordingly. All the writ petitions shall now be listed before the appropriate single Benches for disposal according to law.
Reference answered and disposed of.
