Professional Documents
Culture Documents
A.F.R.
Reserved
Case :- MATTERS UNDER ARTICLE 227 No. - 3886 of 2015
Petitioner :- M/S R.K.B.K. Ltd. Thru' Its Manager Ashok Kumar Rai
Respondent :- Sushila Devi & 7 Others
Counsel for Petitioner :- A.C. Misra, Shailesh Kumar Tripathi
Counsel for Respondent :- Rahul Sahai
Hon'ble Manoj Kumar Gupta,J.
1.
The facts in brief are that the first to seventh respondents filed a
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The second category of cases where the court or the Tribunal can
express word invest such power in them. Even where it is not provided
expressly, such power is deemed to inhere in the court or Tribunal and is
exercised ex debito justitiae to prevent abuse of the process of court.
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act of Court shall prejudice no one (actus curiae neminem gravabit) and
(ii) the record of Courts should represent the correct state of affairs. In
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followed by the court or the quasi judicial authority suffered from such
illegality that it vitiated the proceeding and invalidated the order made
therein, inasmuch as the opposite party concerned was not heard for no
fault of his, or that the matter was heard and decided on a date other than
the one fixed for hearing of the matter which he could not attend for no
fault of his. In such cases, therefore, the matter is to be re-heard in
accordance with law without going into the merit of the order passed. The
order passed is liable to be recalled and reviewed not because it is found
to be erroneous, but because it was passed in a proceeding which was
4 AIR 2001 SC 1084
5 2005 (13) SCC 777
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the Code of Civil Procedure is that under Order 9 Rule 7, Order 9 Rule
9 and Order 9 Rule 13.
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under the Act have been given under Section 169 of the Act. For
convenience of reference, Section 169 of the Act is reproduced below:169. Procedure and powers of Claims Tribunals. (1)
In holding any inquiry under section 168, the Claims Tribunal
may, subject to any rules that may be made in this behalf,
follow such summary procedure as it thinks fit.
(2) The Claims Tribunal shall have all the powers of a
Civil Court for the purpose of taking evidence on oath and of
enforcing the attendance of witnesses and of compelling the
discovery and production of documents and material objects
and for such other purposes as may be prescribed; and the
Claims Tribunal shall be deemed to be a Civil Court for all the
purposes of section 195 and Chapter XXVI of the Code of
Criminal Procedure, 1973. (2 of 1974.)
(3)
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make rules in relation to the following matters:"176. Power of State Government to make rules.--- A
State Government may make rules for the purpose of carrying
into effect the provisions of sections 165 to 174, and in
particular, such rules may provide for all or any of the
following matters, namely:-(a) The form of application for claims for compensation and
the particulars it may contain, and the fees, if any, to be paid in
respect of such applications;
(b) The procedure to be followed by a Claims Tribunal in
holding an inquiry under this Chapter;
(c) The powers vested in a Civil Court which may be
exercised by a Claims Tribunal;
(d) The form and the manner in which and the fees (if any)
on payment of which an appeal may be preferred against an
award of a Claims Tribunal; and
(e)
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framed the U.P. Motor Vehicles Rules, 1998. Rule 221 of the Rules
invests the Claims Tribunal with certain powers of the civil court. Rule
221 reads as follows:"221. Code of Civil Procedure to apply in certain cases:The following provisions of the First Schedule to the Code of
Civil Procedure, 1908 shall so far as may be apply to
proceedings before the Claims Tribunal, namely, Rules 9 to 13
and 15 to 30 of Order V; Order IX, Rules 3 to 10 of Order XIII,
Rules 2 to 21 of Order XVI; Order XVII; and Rules 1 to 3 of
Order XXIII. "
18.
Thus, under the Act and the Rules framed thereunder, the Motor
Accident Claims Tribunal has not been invested with the power of
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application filed by the petitioner would fall. It has been alleged that the
finding of the Tribunal, while making the award on issue no.2, requires
to be reviewed, inasmuch as the Tribunal had inadvertently ignored from
consideration the stamp relating to renewal of license for the period
23.5.2008 to 22.5.2009. A perusal of the award of the Motor Accident
Claims Tribunal reveals that while deciding issue no.2, the Tribunal,
after examining the license of the driver Khusi Ram, has recorded a
categorical finding in the following terms:-
The Tribunal has thus held, after examining the license of the
driver, that it was not valid on the date the accident took place. The
petitioner now contends that the aforesaid finding has been rendered
inadvertently and in ignorance of the endorsement of renewal made on
the license. The petitioner thus wants the evidence to be re-examined. In
the opinion of the Court, such a mistake, if committed by the Tribunal,
even if apparent on the face of record, would be a case of substantive
review and not correction of a clerical error. The other ground, though
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not pleaded before the tribunal, is that in Claim Petition No.36 of 2009,
relating to the same accident, the license of the driver was held to be
valid. Thus, the petitioner seeks to rely on a piece of evidence coming
into existence after the award was rendered. This again can only be a
ground of substantive review. Since, as noted above, the Tribunal does
not have the power of substantive review and, therefore, in the opinion
of the Court, the Tribunal was justified in rejecting the application filed
by the petitioner.
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is in the case of Pranab Dhar Vs. Rajesh Deb10 rendered by the High
Court of Gauhati. In that case, it was held by the Gauhati High Court
9 (2008) 16 SCC 365
10 2009 Law Suit (Gau) 27
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the case of Grindlays Bank Ltd. (supra), which again would not apply to
facts of the instant case as it recognises the power of the Tribunal to
make a review on account of defect in procedure. However, Gauhati
High Court in Pranab Dhar Vs. Rajesh Deb (supra), after quoting the
provisions of Section 169 of the Act, made observations to the effect that
the Tribunal is invested with wide powers to make inquiry in such
manner as it thinks fit. It has been noted that there is no provision under
the Act, which debars the Claims Tribunal to make a review of its orders
and awards in order to do substantive justice between the parties. It has
been concluded thus:" .......... this Court has no hesitation to hold that the
Tribunal has the power of review as the same is implicit in
every Court of civil nature, even when the statute is expressly
not armed with power of review, and also the Tribunal is free to
follow the general procedure prescribed under Order 47, Rule
1, CPC as the legislature vested wide power to it under Subsection (1) of Section 169 regarding what should be the
procedure for holding inquiry under Section 168 of the Act."
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High Court in its aforesaid judgment. As noted above, most of the cases
relied upon by the Gauhati High Court are those where a power of
procedural review has been recognised. In taking the view that under
Section 169 of the Act, the power of the Tribunal is very wide and in
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construing the power of the Labour court in making review, has noted
the distinction between similar provisions under the Industrial Disputes
Act, 1947. Section 11 (1) and (3) of the said Act, somewhat akin to
Section 169 (1) and (3) of the Motor Vehicles Act, 1988, have been held
to operate in different field. Sub-section (1) of Section 11, it has been
held, relates to matters of procedure, whereas Sub-section (3) of Section
11 relates to the powers of the Tribunal. For convenience of reference,
Sub-section (1) and Sub-section (3) of Section 11 of the Industrial
Disputes Act, are reproduced below:13 of 16
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section (1) and (3) of Section 11, held that the Labour court cannot be
said to be invested with the power of substantive review under Subsection (1) of Section 11, while being conferred with the power to devise
"such procedure" as it "may think fit". The relevant observations made by
the Supreme Court in this regard in para 13 of the judgment are as
under:"13. .... Sub-sections (1) and (3) of Section 11 of the Act
themselves make a distinction between procedure and powers
of the Tribunal under the Act, while the procedure is left to be
devised by the Tribunal to suit carrying out its functions under
the Act, the powers of civil court conferred upon it are clearly
defined. The question whether a party must be heard before it is
proceeded against is one of procedure and not of power in the
sense in which the words are used in Section 11. The answer to
the question is, therefore, to be found in sub-section (1) of
Section 11 and not in sub-section (3) of Section 11.
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(supra) omits to notice the distinction between the powers with which
the tribunal is invested with, as compared to the procedure to be
followed by it. Whereas the procedure is left to be devised by the
Tribunal, the powers conferred upon it are clearly defined. Thus, this
Court is unable to subscribe to the view that a Claims Tribunal, while
deciding the dispute under the Act, is invested with the power of
substantive review.
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the case of Sandhya Vaish and another Vs. New India Insurance
Company Ltd. and others11. In that case, an application was filed before
the Tribunal for correcting an omission on its part in awarding interest
from the date of the claim. The learned Single Judge of this Court, after
noticing the provisions of Section 171 of the Act, which permits the
award of the interest from the date of making of the claim, came to the
conclusion that such a mistake could be corrected, being in the realm of
procedure. It is noticeable that in that case, no review was sought in
regard to any finding recorded in the award, but it was only for
correction of the operative part of the award of the Tribunal. Although,
11 2010 (81)All LR 360
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in that judgment, certain observations have also been made to the effect
that in the absence of any prohibition under the Act on the power of the
Claims Tribunal to make a review of its orders and awards, such power
has to be recognised, but ultimately the law laid down thereunder is that
omission to award interest from the date of filing of the claim petition
was a mistake, which can be corrected ex debito justitiae. Thus, the facts
of the said case were distinguishable and the law laid down in the said
decision would not apply to the facts of the instant case.
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petitioner.
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