Heard Sri Deepak Kumar Agarwal, learned counsel for the revisionist and perused the record.
Undisputed facts of the present case are that in an accident which took place on 27.12.2007 one Sri Ram Kumar sustained grievous injuries due to rash and negligent driving by the driver of the Jeep No. U.P.-32/ W-7509 insured with the National Insurance Company Limited/ appellant.
In order to get compensation, he filed a Motor Accidents Claim Petition no. 16 of 2008 ( Ram Kumar Vs. Sri Ram Gupta and others ), allowed by means of judgment and award dated 5.2.2010 passed by the Motor Accident Claims Tribunal/ Additional District Judge Court no.2, Balrampur thereby awarding a sum of Rs. 3520/- with 6% interest per annum from the date of filing of the claim petition. Aggrieved by the same, present revision has been filed by the National Insurance Company Limited under Section 115 of Code of Civil Procedure, 1908.
Sri Deepak Kumar Agarwal, learned counsel for the revisionist while challenging the impugned judgment submits that as the award given by Motor Accident Claims Tribunal is less than Rs.10,000/- so in view of the embargo as given in sub-section (2) of Section 173 of the Motor Vehicles Act , appeal is not maintainable . In these circumstances the only remedy which is left to open for the revisionist / Insurance Company to challenge the award by way of revision under Section 115 of Code of Civil Procedure, 1908. In support of his argument, he has placed reliance on the decision given by full Bench of this Court in the case of Kamla Yadav Vs. Smt. Shushma Devi and others, 2004 (22) LCD 40. the relevant paragraphs is quoted as under:-
" The procedure and powers of the Tribunal are to be found under Section 169 quoted earlier. Interest and costs both can be awarded by the Tribunal. Section 173 provides for an appeal against the award of claims Tribunal to the High Court. Section 174 provides for issuance of Certificate by the Tribunal for recovery of the amount of compensation in the same manner as arrears of land revenue. The jurisdiction of the Civil Court is barred under Section 175 relating to any claim for Compensation which may be adjudicated upon by the Claims Tribunal.
From a perusal of the above provisions, there is no room to doubt that the Claims Tribunal is under obligation to act judicially as on receipt of an application, the Tribunal has to give notice to the parties who have to be afforded an opportunity of being heard. The Tribunal then has to hold an inquiry into the claim before the Tribunal makes an award determining the amount of compensation. It is true that a Tribunal may adopt summary procedure but the provisions regarding notice to the parties and hearing them before making the award cannot be dispensed with. For certain purposes, namely, for taking evidence on oath and enforcing the attendance of witnesses and for compelling the discovery and production of documents and material objects, the Tribunal shall have the powers of the Civil Court . That is to say, it can compel attendance of witness as well as may compel discovery and production of documents and material objects. Sofar the structure and composition of the Tribunal is concerned, we find that one who is or has been a Judge of a High Court or a District Judge or qualified for appointment as a Judge of High Court or as a District Judge are eligible for appointment under Section 165(3) of the Motor Vehicles Act. The above provisions obviously provides for appointment of a person well-versed with the judicial functioning as well as sufficient experience of working in the courts of law. The provisions of the Act do not permit appointment of any other executive authority as member of the Claims Tribunal. The tribunal has to base its determination or award on the evidence adduced an arguments advanced by the parties. It is not based on subjective opinion but objectively based on material brought before it during the course of the proceedings after investigation and inquiry . The awards can also be tested on the basis of the provisions made under the law as under different provisions of the Motor Vehicles Act . The amount of compensation to be awarded has also been indicated. In pursuance of the provisions indicated above, Additional District Judge have been appointed as Motor Accidents Claims Tribunal in different districts of the State. Not alone that Motor Accidents Claims Tribunal acts judicially but it is under obligation to act as such as it has to go through the procedure which is normally adopted in the regular courts of law. A few deviations here and there in the procedure will have no material bearing on the question so long, in substance, it is incumbent upon the Motor Accidents Claims Tribunal to issue notice to the parties, hold investigation into the claim and provide opportunity of hearing to the parties . During this process, parties adduce their evidence and it has been empowered to exercise the powers of the Civil Court in examining the witnesses on oath and to compel their attendance as well as production of material documents or objects necessary for determination of the claim. Thus an adjudicating body which is composed of or consists of experienced judicial functionaries and it is under obligation to act judicially can hardly be said to be a body which is not a judicial adjudicating body. Appointment of any member of executive or non-judicial authority is not envisaged, rather it stands excluded under the provisions of the Act. It has rightly not been disputed before us that the nature of dispute arising in the claim petitions is a dispute of civil nature. It has also not been disputed that prior to constitution of Motor Accident Claims Tribunals such disputes of claims on account of Motor Accidents were being tried by the Civil Court. It is , thus, clear that it is trial of dispute of civil nature by a Tribunal having a judicial functionary as its member. There is no escape from the conclusion that the Motor Accident Claims Tribunal has all the trappings of a Civil Court. Additional District Judge is also undoubtedly a Civil Court. The only ingredient which has to be seen is that as to whether it is the State's Judicial power which is being exercised by the tribunal or not. The Motor Accident Claims Tribunal has been constituted by the State. Its members are appointed by State. It deals with disputes of civil nature which were being earlier dealt with by the regular civil courts. There is no dispute that the civil courts discharge the "States' Judicial functions" part of jurisdiction of which stands transferred to the Motor Accidents Claims Tribunal,composition,character as well as functioning of which , have already been indicated above. There can (not) also be any dispute that Motor Accidents Claims Tribunal is a court subordinate to the High Court in view of the fact that appeal against an award lies to the High Court which fact has been held to be conclusive on the point.
In view of the discussions held above, we are of the view that the orders of the District Judge/ Additional District Judge passed as Motor Accidents Claims Tribunal will be amenable to revisional jurisdiction of the High Court under Section 115 CPC."
Accordingly, it is submitted by Sri Deepak Kumar Agarwal, learned counsel for the revisionist that revision may be allowed and the judgment and award dated 5.2.2010 passed by the Motor Accident Claims Tribunal / Additional District Judge Balrampur may be set aside.
After hearing learned counsel for the revisionist and going through the record, the core question which arises for consideration in the present case is whether by way of revision under Section 115 C.P.C., the revisionist/ Insurance Company can challenge the impugned judgment dated 5.2.2010 passed by the Motor Accident Claims Tribunal/ Additional District Judge Court no.2, Balrampur in M.A.C.P. No.16 of 2008 or not?
In order to decide the said controversy, it is appropriate to go through Section 173 of the Motor Vehicles Act, 1988. The said section reads as under:-
"173 Appeals- (1) Subject to the provisions of sub-section(2), any person aggrieved by an award of a Claims Tribunal, may , within ninety days from the date of the award , prefer an appeal to the High Court:
Provided that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court unless he has deposited with it twenty-five thousand rupees or fifty per cent of the amount so awarded , whichever is less, in the manner directed by the High Court.
Provided further that the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.
(2) No appeal shall lie against any award of a Claims Tribunal, if the amount in dispute in the appeal is less than ten thousand rupees."
From the perusal of the said section , the postilion which emerge out that the legislature while framing the provisions of Motor Vehicles Act has clearly provided that if the award is given by the Motor Accident Claims Tribunal is less than Rs. 10,000/- , no appeal shall lie against the same .
Thus keeping in view the said fact as well as the it is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provisions is plain and unambiguous. The Court cannot rewrite, recast or re-frame the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the Courts. The Court cannot add words to a statute or read words that are not there. Assuming there is a defect or an omission in the words used by the legislature the Court could not got to its aid to correct or make up the deficiency.
The Court decide what the law is and not what it should be. The Courts of course adopt a construction which will carry out the obvious intention of the legislature but cannot legislate . But to invoke judicial activism to set at naught legislative judgment is sub serve of the constitutional harmony and comity of instrumentalities. The above said view is reiterated by Hon'ble Supreme Court in the following cases:-
(i) Union of India and another V. Deoki Nandan Agarwal , AIR SC 96
(ii) All India Radio V. Santosh Kumar and another (1998) 3 SCC 237
(iii) Sakshi V. Union of India and others,(2004) 5 SCC, 518
(iv) Pandian Chemicals Ltd. V. CIT (2003) 5 SCC 590
(v) Bhavnagar University V. Palitana Sugar Mills(P) and others, AIR 2003 SC 511.
(vi) J.P.Bansal Vs. State of Rajasthan,(2003) 5 SCC ,134.
In Nasiruddin Vs. Sita Ram Agarwal, (2003) 4 SCC 753, the Hon'ble Supreme Court has held that the Court can iron cut of the creases but cannot change the texture of the fabric. It cannot enlarge the scope of legislation or intention when the language of provisions is plain, unambiguous. It cannot add or subtract words to statue or read something into in which is not there. It cannot rewrite or recast the legislation.
Accordingly, in view of the said facts once the statute has provided an appeal under Section 173 of the Motor Vehicles Act against an award passed by the Motor Accidents Claims Tribunal and further in sub-section (2) of Section 173 of the Motor Vehicles Act provides that no appeal shall lie against any award of a Claims Tribunal, if the amount is less than ten thousand rupees, so the revision filed by the revisionist thereby challenging the award dated 5.2.2010 passed by Motor Accident Claims Tribunal/ Additional Distrct Judge, Balrampur is not maintainable ( see also Shipping Corporation of India Ltd. v. Machado Brothers and others AIR 2004 SC 2093) So far as the law cited by learned counsel for the appellant in support of his argument of a Full Bench of this Court in the case of Kamla Yadav ( supra) is concerned, the same is not applicable in the facts and circumstances of the case as in the said matter this Court has held that if any order is passed by Motor Accidents Claims Tribunal during adjudication of the claim petition then the same is revisable under Section 151 of Code of Civil Procedure as the Tribunal falls within the scope and definition of word" Court".
For the foregoing reasons, the revision lacks merits and is dismissed .
No order as to cost.
Order Date :- 18.12.2014 dk/