1. This case came up on 10.7.2002 for consideration of application filed by respondent Nos. 1 to 6, claimants for the release of the amount deposited in this writ and two of them, viz., Yogita Mehta (respondent No. 4) and Yogesh Mehta (respondent No. 5) having attained majority. At that time learned Counsel for the parties jointly submitted that instead of considering the application for release, this matter needs to be heard finally and disposed of at this stage. Mr. Thakur, learned Counsel for respondent Nos. 1 to 6, hereinafter referred to as the claimants, submitted that he does not want to file any reply to the writ petition, but will challenge the right of the petitioner to maintain this writ under Articles 226/227 of the Constitution of India challenging the award that too on quantum, and will support the award on the basis of materials on record of the Tribunal below. It was for this reason that we finally heard the arguments in this case and reserved the judgment without waiting for the reply of the respondent Nos. 1 to 6.

2. 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.

3. Facts as emerge from the file of the writ petition, as well as from the record of the learned Tribunal below, are that one Pratap Singh was the husband of claimant No. 1 and father of other claimants. He was travelling in truck bearing registration No. HP 21-0407 on 18.9.1996 along with 151 boxes of apple and 3 jute bags also of apple as owner of goods. He had hired truck from his village to Delhi for carriage of apples. When the truck reached near Taila-Habban Road, Rajgarh, District Sirmour, because of rash and negligent driving on the part of driver (who also died in the accident), truck rolled down from road. In this accident Pratap Singh died. On these averments compensation in the sum of Rs. 10,00,000 including Rs. 70,000 for damage of apple boxes was claimed for with costs and interest. Respondents when put to notice, filed their replies. Common reply was filed by respondent Nos. 8 and 9, i.e., the owners, and the petitioner insurer filed its separate reply. Respondent Nos. 8 and 9 amongst others admitted place, date and time of the accident, as is evident from their stand in para 8 of the reply. Both of them pleaded that truck in question was insured with the petitioner insurance company. While praying for dismissal of the petition, they urged that since the truck in question was insured with the petitioner, therefore, they are not liable to pay any amount of compensation.

4. On the other hand, it is admitted case of the petitioner that vehicle in question was insured with it at the time of accident. At the same time insurance company petitioner by and large denied its liability.

5. Following issues were framed by the learned Tribunal below:

(1) Whether the predecessor of the petitioners died in the accident due to rash and negligent driving of the deceased driver of the truck involved in the accident, as alleged? OPP (2) If issue No. 1 is held in affirmative, to what amount of compensation the petitioners are entitled and from whom? OPP (3) Whether the truck involved in the accident was being plied in contravention with the terms and conditions of the insurance policy? OPR-3 (4) Relief.

6. A sum of Rs. 8,10,000 along with 9 per cent interest from the date of filing of the petition, i.e., 3.1.1997 till payment of entire compensation was allowed. 25 per cent of the awarded amount was made payable to the widow and remaining 75 per cent was made payable to claimant Nos. 2 to 6 equally. Out of the awarded amount payable to claimant Nos. 1 to 3, 5 per cent was ordered to be released to each one of them. Rest was ordered to be invested.

7. On the question of maintainability of this writ, Mr. Anand Sharma, learned Counsel for the 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 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 of such award.

8. Mr. 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.

9. 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.

10. 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 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.

11. We are further of the view that if argument of Mr. Thakur is taken to its logical end, then even after being judicially satisfied that the award is patently not only erroneous, but is grossly excessive and it by any standard does not indicate just compensation which is to be assessed, the court being helpless will have to remain a silent and mute spectator and would have further to put its seal of approval on it by becoming privy to it. We do not find any reason either in law or otherwise on the question of interpretation on the provisions of the Motor Vehicles Act while assessing just compensation to uphold such a view. At the risk of repetition we may clarify that in such a situation this Court would not lag behind in assessing just compensation as required under Section 168 of the Motor Vehicles Act, 1988.

12. What is the scope of interference in such like situations, had been dealt with by this Court in the context of Article 227 of the Constitution of India, as well as by Supreme Court and by other High Courts. Reference to these decisions is being made hereinafter.

13. In New India Assurance Co. Ltd. v. Jagtar Singh 1998 ACJ 1074 (HP), revision was filed because appeal could not be filed under Section 173 of Motor Vehicles Act, 1988 as compensation awarded was less than Rs. 10,000. In this case the counsel agreed to delete the provisions of Section 115 of Civil Procedure Code and confined the petition to Article 227 of the Constitution and court held that in the circumstances revision petition under Article 227 lies challenging the correctness of the award of the Tribunal.

14. While dealing with identical objection as raised by Mr. Thakur in opposition to the present writ petition, again this Court in Mittar Singh v. Ashish Kumar 1998 ACJ 1200 (HP), considered the matter after noting the contention and held as under:

(4) Mr. Kuldip Singh is further at pains to argue that the provisions of law have not been properly appreciated and the award stands vitiated on that account and it is a fit case where this Court should entertain these petitions under Article 227 of the Constitution of India.

(5) Mr. Ravi Bakshi, learned Counsel appearing for respondent No. 3, in reply, has raised an objection that the present petitions are not maintainable and this Court should not exercise its extraordinary jurisdiction under Article 227 of the Constitution of India to look into the validity or otherwise of the award which otherwise, according to the learned Counsel, is a valid award having been given on appreciation of the evidence and keeping the relevant provisions of law in view.

(7) After hearing the learned Counsel for the parties at length, I am of the view that a wholly unjustified order, a perverse order or an order with no evidence can certainly be interfered with while exercising the jurisdiction under Article 227 of the Constitution of India. This court is invested with judicial superintendence and invested with special jurisdiction to see that the courts and Tribunals which are functioning within the jurisdiction of this Court, act within their authority and in the manner required by law.

(8) Where a case is made out that the authorities or the Tribunals have exceeded their authority or have otherwise acted in capricious and arbitrary manner transgressing their limits, this Court can certainly interfere. The case-law on the subject over the years have repeatedly said that the power by this Court has to be exercised with utmost caution and in extreme situations most sparingly and with requisite care and circumspection.

(9) It is, thus, to be seen whether the petitioner in the present case has been able to make out a case for interference keeping in view the aforesaid principles. As I look at the matter, the Motor Vehicles Act is aimed to provide relief by way of compensation to the injured or the deceased in the given situation. The exercise of the powers by this Court under Article 227 of the Constitution of India should not be so exercised in order to circumvent the statutory provisions contained in a particular Act. Sub-section (2) of Section 173 of the Motor Vehicles Act clearly lays down that no appeal shall lie against any award of a Claims Tribunal if the amount in dispute in the appeal is less than Rs. 10,000. The above said provision, thus, has to be read or construed in the manner so that the object of the provisions is not diverted.

(10) This court while exercising extraordinary jurisdiction under Article 227 of the Constitution of India is not to sit as a court of appeal or a revisional court so as to correct errors of law or of fact committed by the subordinate authorities. As pointed above, the provision of the Motor Vehicles Act being a social legislation for the welfare of the citizens, should be interpreted harmoniously so as to achieve the object for which the provision had been made. It has been held in a number of judgments on the point that an error of law or of fact cannot be made a ground for interference by this Court under Article 227 of the Constitution of India. It can safely be added that even if a decision arrived at by a subordinate authority is found to be erroneous in law, there would not be a case for interference under this provision.

15. In the case of United India Insurance Co. Ltd. v. Rajendra Singh 2000 ACJ 1032 (SC), award was passed by the Tribunal against the insurance company who subsequently learnt that claimants were not involved in the accident which they described in the claim petition and thus had played fraud on the Tribunal. Insurance company in such circumstances moved the Tribunal for recall of the award. Tribunal dismissed this application upholding the objection of the claimants that it has no power to review except to correct the calculation of the amount of compensation. Writ petition was filed for quashing the award in the High Court of Allahabad. This was dismissed. Supreme Court while allowing the appeal of the insurance company, observed that it (insurance company) deals with public money. In these circumstances claim was remitted to the Tribunal for a fresh consideration. Regarding power of the High Court under Articles 226 and 227 of the Constitution in the circumstances of that case, what was observed and is relevant for the present case, is as under:

(10) 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.

(11) No one can possibly fault the insurance company for persistently pursuing the matter up to this Court because it is dealing with public money. If it has discovered that such public fund, in a whopping measure, would be knocked off fraudulently through a fake claim, there is full justification for the insurance company in approaching the Tribunal itself first. At any rate the High Court ought not have refused to consider its grievances. What is the legal remedy when a party to a judgment or order of court later discovered that it was obtained by fraud?

16. Apex Court in United India Insurance Co. Ltd. v. Bhushan Sachdeva 2002 ACJ 333 (SC), while dealing with Sections 173, 168, 170 and 149 (2) as well as Article 227 of the Constitution of India, in a case where compensation of Rs. 12,53,000 was awarded (as in the present case) and the insured-cum-owner having not challenged the award because burden was ordered to be borne by the insurance company, in-such a case on a petition under Article 227 of the Constitution of India was filed, the Supreme Court held as under:

(7) According to the appellant insurance company the Tribunal's award was in gross violation of the principles of natural justice laid down by this Court in various judgments and is very unjust and arbitrary. However, as the appellant felt that an appeal could not be filed by the insurer in challenge of the award he had chosen to file the revision petition before the High Court.

(10) Can it be said that the insurance company should not have any grievance at all even in a case where the award appears to be unjust to that company? We must bear in mind that the nationalised insurance companies in India are holding public money. What they have to deal with is public fund. They are accountable to the public for every pie of it. If it is held that no insurance company should feel aggrieved even if the award is seemingly unjust and that such awarded amount should go out of the public fund, it is public interest which suffers. If the insurance company has reason to believe that the award was obtained fraudulently which fact was not known to the insured, should we allow public money to be given to satisfy such an award? In such cases the insurance company must feel aggrieved. Any interpretation denying such aggrieved insurance companies the opportunity to seek the legal remedy of appeal should not be adopted unless there is a statutory compulsion. There is nothing in Section 173 or in the other relevant provisions of the Act which debars the insurance company to resort to the remedy of appeal when it knows that the award is unjust.

(11) We are, therefore, of the view that the insurance company can fall within the ambit of the words 'any person aggrieved by an award of a Claims Tribunal' as used in Section 173 (1) of the Act, when the insured failed to file an appeal against the award.

(14) What is meant by the words 'failed to contest'? These words must be interpreted in a realistic manner. Right to contest would include the right to contest by filing an appeal against the award of the Tribunal as well. Hence the insured can continue to contest the claim by filing an appeal as provided under Section 173 of the Act. If the insured fails to prefer an appeal that also would amount to failure to contest that claim effectively. Quite often the insured would lose the desire to contest the claim once he is told that he would not be mulcted with the liability as the same is siphoned off to the insurer. It means that the insured had dropped out from contesting a claim midway. In such an eventuality the Act enables the insurer to contest it on all grounds available to the insured.

(16) We, therefore, take the view that it is open to the insurance company to invoke the right under Section 173 of the Act as the insured had failed to appeal against the award passed against him. That being the position, the revision petition filed by the appellant before the High Court should be treated as an appeal petition under Section 173 of the Act. The appellant can be allowed by the High Court to amend the petition to include grounds of appeal, etc. It is open to the appellant to move an application before the High Court for that purpose. If any application is filed by the applicant before the High Court for stay of execution of the award the same has to be considered on the merits of it and appropriate orders thereon can be passed.

17. A Full Bench of Gauhati High Court in Milan Rani Saha v. New India Assurance Co. Ltd. 2001 ACJ 103 (Gauhati), while considering the scope of judicial review under Articles 226 and 227 of the Constitution of India elaborately dealt with this matter and held that petition under Articles 226/227 of the Constitution of India is maintainable against an award of the Tribunal at the instance of the insurance company on the grounds other than those mentioned under Section 149 of the Motor Vehicles Act. Relevant paras of this judgment are extracted hereinbelow:

(4) The Full Bench decision in United India Insurance Co. Ltd., 1993 ACJ 828 (Gauhati), is a decision relating to the maintainability of a statutory appeal under Section 173 of the Motor Vehicles Act, 1988. Section 173 of the Act, 1988 entitles the 'aggrieved person' to prefer an appeal. An appeal is distinct from judicial review as enjoined under Articles 226/227 of the Constitution. An appeal is a constitution of the original proceeding. An appeal can be preferred to a superior court, Tribunal or authority to reverse, vary, modify or set aside an order, determination, decision or award of an inferior court, Tribunal or authority in the hierarchy on the ground the order/determination/decision is erroneous or otherwise requires to be corrected as a matter of law. A right of appeal is a creature of the statute. It is not an ordinary practice or procedure, it is a legislative product. There is no natural or inherent right to appeal unless such a right is conferred or created by the statute. Neither the superior court nor the inferior court or Tribunal can create or take away such a right. The area as well as extent of challenge to the order or judgment is also defined and delineated by the legislature and the challenge is also to be confined to the extent indicated in the statute. How and in what manner the legislature demarcate the contour or limit the scope and extent, will differ from statute to statute. Judicial review is an integral part of our Constitutional system and the power is vested on the High Courts and the Supreme Court to uphold the Constitution and the rule of law. Judicial review comprises mainly three aspects, judicial review of administrative action; judicial review of legislative action and judicial review of judicial decision. Judicial review forms the basic structure of our Constitutional system. Articles 32, 226 and 227 are the tools of judicial review. Judicial review is a mechanism by which the Constitutional courts exercise its Constitutional jurisdiction including the jurisdiction of superintendence over the proceedings before the inferior courts, Tribunal, authority or other persons who are charged with the public acts and duties. English law originally derived its jurisdiction from the common law and the jurisdiction was exercised by issue of prerogative writs of mandamus, certiorari, quo warranto, prohibition, etc. Presently, there also, the jurisdiction is conferred and regulated by the statutes and rules of the court. The power of judicial review in India directly emanates from the Constitution itself. Judicial review is different from an ordinary appeal. Nor can it be used as a cloak for an appeal in disguise. It is mostly confined to the decision making process rather than the decision. The purpose of judicial review is to ensure that an individual is given fair treatment by the concerned authority and is given justice. It is mainly concerned where the decision making authority exceeds its power and commits error of law or grave injustice of acts in violation of all canons of justice and fair play or when it acts in abuse of its powers. The grounds of judicial review are also subjected to control. A very wide and comprehensive power is conferred on all the High Court by Article 226 of the Constitution of India in relation to exercise of jurisdiction to issue to any person or authority including in appropriate cases, any Government within those territories, directions, orders or writs including the writs in the nature of habeas corpus, quo warranto, certiorari, mandamus, prohibition or any of them for enforcement of any of the rights conferred by Part III of the Constitution or for any other purpose(s). There are only two limitations imposed upon exercise of this power under Article 226 by the High Courts, viz., (a) the power is to be exercised 'throughout the territories in relation to which it exercises jurisdiction'; and (b) that the person or authority to whom the High Court is empowered to issue the writs must be within those territories. K. Subba Rao, J., as he then was, in Dwarka Nath v. Income Tax Officer AIR 1966 SC 81, thus made the following observations:

This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression 'nature', for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the Article itself. To say this is not to say that the High Courts can function arbitrarily under this Article. Some limitations are implicit in the Article and others may be evolved to direct the Article through defined channels. This interpretation has been accepted by this Court in T.C. Basappa v. Nagappa AIR 1954 SC 440 and P.J Irani v. State Of Madras & Another AIR 1961 SC 1731.

The above decision has been rehearsed and relied upon in the case of U.P. State Co-operative Land Development Bank Ltd. v. Chandrabhan Dubey (1999) 1 SCC 741 and in Mewa Singh v. Shiromani Gurdwara Prabandhak Committee (1999) 2 SCC 60. In Special Reference No. 1/64 (in Keshav Singh, Re), reported in AIR 1965 SC 745, Chief Justice Gajendragadkar stated as follows:

If the power of the High Courts under Article 226 and the authority of this Court under Article 32 are not subject to any exceptions, then it would be futile to contend that a citizen cannot move the High Courts or this Court to invoke their jurisdiction even in cases where his fundamental rights have been violated. The existence of judicial power in that behalf must necessarily and inevitably postulate the existence of a right in the citizen to move the court in that behalf, otherwise the power conferred on the High Courts and this Court would be rendered virtually meaningless. Let it not be forgotten that the judicial power conferred on the High Courts and this Court is meant for the protection of citizens' fundamental rights, and so, in the existence of the said judicial power itself is necessarily involved the right of the citizen to appeal to the said power in a proper case.

In L. Chandra Kumar v. Union of India (1997) 3 SCC 261, the Supreme Court also rehearsed the same view and restated that the power of judicial review vested in the High Courts under Article 226 of the Constitution and in the Apex Court under Article 32 of the Constitution, is an integral and essential feature of the Constitution constituting part of the basic structure of the Constitution. In the aforesaid case of L. Chandra Kumar, it was also observed:

We also hold that the power vested in the High Courts to exercise judicial superintendence over the decisions of all courts and Tribunals within their respective jurisdictions is also part of the basic structure of the Constitution. This is because a situation where the High Courts are divested of all other judicial functions apart from that of Constitutional interpretation, is equally to be avoided.

(5) Whether an application under Article 226 of the Constitution is to be entertained or not, is to be left to the discretion of the court. The Constitution has imposed no limitation within its jurisdiction. Nor can the jurisdiction be limited or laid by a statute. It is an all embracing Constitutional power. The restrictions imposed on a High Court in entertaining writ petitions, are self-imposed limitations, the nature of the powers under Article 226 and for that matter Article 227 of the Constitution are wider in content. The powers are mainly used for rendering justice to the parties. Article 227 of the Constitution of India similarly confers powers upon the High Courts of superintendence over all courts and Tribunals throughout the territory in relation to which it exercises jurisdiction, the jurisdiction is not confined only to the extent of administrative jurisdiction, the powers of the High Courts under Article 226 of the Constitution cannot be taken away or barred by any legislation; nor can it be barred by any statute by providing that a decision of an inferior court or Tribunal shall be final. C. Singh v. S. Singh AIR 1979 SC 1 and State of Gujarat v. V.V. Vaghela AIR 1968 SC 1481. A duty and responsibility is cast on the High Court and is invested with the power of general superintendence to keep the courts and Tribunals within its territorial jurisdiction within the bounds of their authority and to see that the authorities discharged their duties in a legal manner. The High Court can interfere in the cases of erroneous exercise of jurisdiction, refusal to exercise jurisdiction, error of law on the face of materials on records, violation of principles of natural justice, arbitrary or capricious exercise of power/authority/discretion, perversity and so on and so forth. It is a discretionary and extraordinary power conferred on the High Courts that is to be used as and when called for. Alternative relief/remedy may be a ground for refusal to grant relief. But in a review case, to correct manifest injustice where basic principles of natural justice have been violated, alternative remedy/relief cannot and shall not stand as a bar for grant of relief. While exercising the jurisdiction/discretion, the court will no doubt exercise judicial discretion keeping in mind the judicial norms.

The High Court's powers under Article 227 of the Constitution though initially shown to be restricted only to the cases of grave dereliction of duties and gross violation, to be used/exercised most sparingly in cases of grave injustice, but there is a shift of the paradigm. The trend is now liberalised. It is, however, cannot be used as an appellate or revisional power. The High Court in exercise of its power will not substitute its own judgment to that of an inferior court on a question of fact or interfere with the legitimate exercise of powers/jurisdiction by the inferior court, unless it is arbitrary, capricious or there is error of finding of jurisdictional fact. Ref. Achutananda Baidya v. Prafulla Kumar Gayen (1997) 5 SCC 76. The power under Article 227 of the Constitution is Wider than that of Section 115, Civil Procedure Code and may be used even when Section 115, Civil Procedure Code is not applicable. The power of judicial superintendence under Articles 226/227 of the Constitution is not limited to technical rules. The power under Article 227 of the Constitution may even be exercised suo motu by the court.

(6) The letter and spirit of Articles 2267 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.

Articles 32 and 226 of the Constitution form the core of the Constitution. Constitution is not to be read as a statute. It is 'fons et origo'-the main spring of all the statutes. A Constitutional provision is to be interpreted broadly and generously keeping in mind the ideals of the Constitution. The Constitution sets-out a goal to be reached. It does not reflect the legal policy alone. It echoes the ideals and longings of the makers of the Constitution and the aspiration of 'we the people' the very words speak of the republican and democratic attributes of the policy that all powers emanate from the people. The Constitution is not to be read merely as a lawyer's law.

In a decision making process, the courts are concerned with the legal and Constitutional policies which undoubtedly take note of the philosophy of legal policy. The primary object of the legal policy is to do justice. The underlying basis of legal policy is to cause/do welfare of the community as a whole. 'Selus populi suprema lex'-law should serve the public interest. In adopting a construction of a statute, endeavour is to be made to avoid that construction which is in any way adverse to the public interest. Law should afford equal treatment for all and should show equal concern and respect to all. In the end, the primary aim of legal policy is to do justice and the courts presume that Parliament does not intend injustice.

We have read and re-read the judgment of the Division Bench of this Court in Laxmi Das, Writ Appeal No. 26 of 1994; decided on 2.6.1995, wherein this Court interfered in the exercise of discretion and jurisdiction of the learned single Judge in exercise of the jurisdiction under Article 226 of the Constitution of India. In the aforesaid case, the court basically was concerned with the exercise of jurisdiction by the learned single Judge. Admittedly, there was a marginal variation of the amount of the compensation awarded by the learned single Judge. In that context, the learned Division Bench while judging the exercise of the powers under Article 226 of the Constitution, interfered with the decision making process of the learned single Judge. The above aspect/fact of the case cannot be read as a decision that in no circumstances there can be no judicial review under Articles 226/227 of the Constitution of India in respect of adjudication of claims for compensation under the Motor Vehicles Act.

(7) The Motor Accidents Claims Tribunal is a creature of the statute and wherever/whenever it acts in violation of the statute, it will be amenable to the writ jurisdiction of the High Court. U.P. Stale Co-operative Land Development Bank Ltd., AIR 1999 SC 753 and Mewa Singh, AIR 1999 SC 688. In a recent judgment of the Apex Court in United India Insurance Co. Ltd. v. Rajendra Singh 2000 ACJ 1032 (SC), the Apex Court expressed its distress also against the order/action of the High Court before whom the insurance company approached for annulling the award and the High Court rejected the same. In that context the Apex Court observed as follows:

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 people's 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.

In our considered opinion, judicial review against such an award is permissible and it will be for the court alone to exercise the discretion judging the fact situation in the light of the established principles of law and practice.

In view of the above facts and circumstances as well as the discussions, we answer the reference in the affirmative and hold that an application for judicial review under Articles 226/227 of the Constitution of India is maintainable against an award of the Tribunal under the Motor Vehicles Act at the instance of the insurer on the grounds other than those mentioned under Section 149 of the Motor Vehicles Act, 1988.

Consequent upon our answer to this reference, the matter is now to be sent back to the Division Bench to proceed with the adjudication of the appeal in the light of the answer to this reference.

18. Again a Division Bench of Punjab and Haryana High Court in National Insurance Co. Ltd. v. BalbirKaur 2001 ACJ 555 (P&H), while examining the scope of Article 227 of the Constitution of India, held as under:

(11) It was lastly argued that it could happen that in a given case an insurance company if not given the right to challenge the award on merits or in regard to the quantum of compensation which may be highly excessive and unconscionable, a grave injustice may be done and the company will have no remedy. We are not impressed by this argument. In an appropriate case, it would be open to the company to approach this Court in the exercise of its supervisory jurisdiction under Article 227 of the Constitution.

19. To similar effect are the decisions in Oriental Insurance Co. Ltd. v. Jharna Sarkar 2001 ACJ 1475 (Gauhati); New India Assurance Co. Ltd. v. Milan Rani Saha 1999 ACJ 974 (Gauhati) and National Insurance Co. Ltd. v. Florrentina Hilario Gonsalves 2000 ACJ 913 (Karnataka).

20. Supreme Court while considering the grant of relief by entertaining the claim petition under Article 227 of the Constitution of India after deletion of Section 166 (3) in the case of New India Assurance Co. Ltd. v. Ramesh Bhai C. Patel 1997 ACJ 938 (SC), held as under:

The learned Counsel for the petitioner submits that the relief granted by the High Court of entertaining the claim petition in view of the deletion of Sub-section (3) of Section 166 of the Motor Vehicles Act could not have been given in a petition under Article 227 of the Constitution. He submits that only an appeal in the High Court under Section 173 of the Act could have been treated as a pending matter in which the benefit of deletion of Sub-section (3) of Section 166 of the Act could have been given. He also submits that there is a limitation prescribed for filing an appeal under Section 173 which had expired and this presented a further difficulty in the present case.

In our opinion, these are mere procedural or technical objections which should not frustrate the course of justice. The object of omitting Sub-section (3) of Section 166 of the Act to remove the bar of limitation for a claim petition is obvious. This being so, a matter which was pending in the High Court when this change was brought about, should be governed by the effect of omission of Sub-section (3) of Section 166. In the present case, the petition under Article 227 of the Constitution is deemed to be an appeal to the High Court under Section 173 of the Act and condoning the delay in filing the appeal (Sic. claim application), the benefit of omission of Sub-section (3) of Section 166 is granted to the claimants. The High Court's order directing the claim petition to be entertained and decided on merits is sustained on this basis.

The special leave petition is disposed of accordingly.

21. In Ram Nayaran Singh v. Election Commission 1997 ACJ 67 (Patna), Full Bench of Patna High Court while considering the scope of Article 226 of the Constitution of India and power of High Court held as under:

(13) In these backgrounds, although there is no specific provision for making payment of compensation due to loss or damage, it is always open to the court, while exercising extraordinary power under Article 226 of the Constitution, to grant such relief in public interest and equity.

(14) This cannot be denied that Article 226 is couched power on the High Court to reach injustice wherever it is found. The power of the High Court as held by the Supreme Court in different cases is wider than the powers of English courts to issue prerogative writs under English law. The Supreme Court while examining the ambit and scope of Article 226 in the case of Shiv Shankar Dal Mills v. State of Haryana AIR 1980 SC 1037, held thus:

Courts of equity may and frequently do, go much further both to give and withhold relief in furtherance of the public interest than they are, accustomed to go where only private interests are involved. Accordingly, the granting or withholding of relief may properly be dependant upon considerations as of public interest... .

22. While supporting the averments made in the writ, petition, Mr. Sharma, learned Counsel for the petitioner submitted that there is no cogent, trustworthy and reliable evidence being there on the record so as to support the figure of Rs. 10,000 per month being income of the deceased, arrived at by the learned Tribunal below. In this behalf, reliance was placed by him on para 6 of the claim petition as well as the statement of Sumitra Devi. This position has been controverted by Mr. Thakur, who stated that writ petition is not maintainable in law and that the deceased was having income of more than Rs. 10,000 per month from agriculture, horticulture as well as from the vocation of carpenter that the deceased used to carry on.

23. He further stated that statement of claimant No. 1, widow, Sumitra clearly establishes this position.

24. In order to substantiate this plea, learned Counsel for the petitioner, as well as claimant Nos. 1 to 6, referred to the statement of Sumitra Devi. She after giving details of the truck having been hired against goods receipt Exh. PW I/A and the accident having occurred, stated that there are 5 small children who are the legal heirs of the deceased besides her. She is unable to look after them. Deceased used to look after the orchard and in the year 1996 apple crop was sold for Rs. 1,20,000, whereas in 1997 because of death, the crop was sold on contract for Rs. 78,000 and in the year 1998 it was sold for Rs. 29,569 as per bill of the sale proceeds Exh. PW 1/B. According to her there is none to look after the orchard or work. She has further gone on record to state that deceased used to work as carpenter and had obtained diploma from H.P. Government Industry Department. She had brought original diploma and its photocopy has been placed on the record. Per her, the deceased used to earn Rs. 150 per day while working as a carpenter and income from all these sources was more than Rs. 10,000.

25. So far income aspect of the deceased is concerned, we feel that sum of Rs. 10,000 per month as arrived at by the learned Tribunal below cannot be sustained for want of credible and trustworthy evidence. We are also aware that element of guesswork in such situation is always there. But it has to be on the basis of available materials. According to PW 1, claimant Sumitra Devi, crop of 1996 (that is the year when this accident took place), was sold for Rs. 1,20,000. In 1997 crop of this orchard was sold for Rs. 78,000 on contract and in the next year crop was sold for Rs. 29,569. Even if it be assumed that apple crop in the year 1996 was sold for Rs. 1,20,000, what were the expenses incurred in earning this amount (like plucking, grading, packing, cost of boxes, trays/ waste paper, straps, transportation, etc.). To this effect, there is no evidence. It is not the case of the claimants that during this year orchard was sold on contract as was sold in 1997.

26. In this behalf we may also notice that so far apple orchard is concerned, it is still with the claimants. Then the material factor is the cost of service that was being rendered by deceased needs to be assessed. Again there is no evidence produced by the claimants in that behalf. It is a matter of common knowledge that total expense of per box from the stage of plucking till being brought to market comes to about Rs. 60.

27. We also take judicial notice of the fact that so far maintenance, upkeep and looking after of an apple orchard is concerned, it is a whole time job involving huge expenses. It involves many steps like digging of taulias, pruning, providing manure/fertilizers, sprays, checking of weeds arid insecticides is a continuing process and is a whole time job. Thus in case the petitioner was earning Rs. 150 per day while working as a carpenter and was busy around the year, then it was impossible for him to have maintained orchard and in such a situation what was the cost of labour engaged by him, there is no evidence.

28. Therefore, taking the maximum income of the orchard at Rs. 1,20,000 per annum (this is the maximum return shown by PW 1 widow of the deceased during three years, i.e., 1996, 1997 and 1998), we feel that the deceased was incurring an expense of 50 per cent of the gross income as aforesaid, thus, leaving Rs. 60,000 in his hand. Thus net income available with the deceased can be taken at Rs. 60,000 per annum. What was pleaded in para 6 of the claim petition before the Tribunal by the claimants was as under:

29. Now we shall examine the case of the parties to come to a conclusion whether compensation awarded by the Tribunal below is just as required under law or is too excessive or too low. In case conclusion on the basis of evidence on record is that it is just, there is no question of any interference with the impugned award in this writ petition. Otherwise this Court is neither powerless nor will remain a mute spectator to put its seal of approval on anything or everything that is awarded by the Tribunal upholding the plea of Mr. Thakur.

30. In this behalf we are of the view that if in a given situation justice of the case demands, again this Court will be well within its authority under law to rectify the omission on the part of the Tribunal so that it is kept in the bounds of its limit.

31. We may also point out that the purpose of enacting social and beneficent legislation, i.e., Motor Vehicles Act, 1988, particularly its Chapter XII, is to provide just compensation to the injured, legal representatives of a deceased (as in the present case) or to owner of damaged property, as the case may be. Prior to 1982, under Motor Vehicles Act of 1939, there was no provision for allowing interim compensation. Realising that something needs to be immediately provided, provision was made by adding Sections 92-A to 92-E. Further provision was also made for giving compensation, where the particulars of offending vehicle were not available. This was on the doctrine of hit and run.

32. Again in the 1988 Act, supra, keeping in view the requirements of time, amendments were made in 1994. Amount payable under Section 140 was doubled. Besides this Sub-section (3) of Section 166 was deleted. Section 163-A was added and claim under it was to be determined as per Schedule added to the Act on structured formula.

33. As such we are of the view that assessment of just compensation is what is required to be undertaken by the authorities under Section 168 of the Motor Vehicles Act, 1988. It is neither a windfall, nor it comes as a bounty to the claimants. As such in a given case (like the present one), court cannot be held to be powerless in exercise of its plenary jurisdiction as well as power of superintendence and control to correct award and consequently assess just compensation as per law.

34. In these circumstances, we feel that net income of the deceased from all sources can in no case be more than Rs. 5,000 per month. On the date of accident, two of his children were major and three were minor. Thus by following unit system which is by now well-known as well as acknowledged method of assessing compensation, dependence of the claimants on the deceased when rounded off, comes to Rs. 4,100 p.m. or say Rs. 49,200 per annum. Keeping in view admitted age of the deceased Pratap Singh being 49 years, multiplier of 10 would sub-serve the ends of justice. Thus, the total compensation payable to the claimant Nos. 1 to 6 works out to Rs. 4,92,000. To this another sum of Rs. 18,000 is allowed on account of consortium (this amount will be exclusively payable to claimant No. 1, 'Sumitra, widow of the deceased). In addition to this, another sum of Rs. 15,000 is added by way of conventional damages and funeral expenses. Thus, the total compensation works to Rs. 5,25,000 (Rs. 4,100 x 12 x 10 - Rs. 4,92,000 + Rs. 18,000 + Rs. 15,000 = Rs. 5,25,000). This amount is inclusive of any amount paid/deposited under no fault liability. Respondent Nos. 1 to 6, claimants will be entitled to 9 per cent interest on this amount from the date of filing of claim petition, i.e., dated 3.1.1997 till the date of deposit of the awarded amount of compensation. Since all the respondents are class-I heirs, it is further ordered that each one of them will share compensation of Rs. 5,07,000 equally and claimant No. 1, Sumitra Devi will get the remaining sum of Rs. 18,000 as observed earlier. All the claimants shall be entitled to proportionate interest on the amount awarded to each one of them. This in our view is the amount of just compensation as per law.

35. In view of the aforesaid discussion this petition is held to be maintainable and thus the award passed by Motor Accidents Claims Tribunal (II), Shimla, in M.A.C. No. 10-S/2 of 1997 titled as Sumitra Devi v. Rajeev, is hereby modified in the following terms:

(a) Respondent Nos. 1 to 6, claimants are held to be entitled to compensation of Rs. 5,25,000 in all with interest at the rate of 9 per cent per annum w.e.f. 3-. 1.1997, inclusive of any amount deposited with the Tribunal and/or paid to these claimants under no fault liability;

(b) While holding respondent Nos. 8 and 9 as well as the petitioner liable, since insurance of the truck is admitted by the petitioner, it is further held that it shall be liable for the payment of this amount till the date of its actual payment/deposit;

(c) That the sum of Rs. 5,07,000 will be shared equally by all the respondent-claimant Nos. 1 to 6, and the remaining Rs. 18,000 will be payable to Sumitra Devi exclusively. Each one of the claimants will be entitled to proportionate interest on his/ her share. Any amount paid/released to any one of them shall be deducted/adjusted towards his/her share;

(d) So far the amount payable to minor respondent is concerned, it shall remain invested in an interest earning scheme with a nationalised bank till he attains majority. Its disbursement will be subject to further directions of this Court;

(e) So far amount payable to major respondent-claimant Nos. 1 to 5 is concerned, it is ordered that each one of them shall be entitled to release of 25 per cent out of his/her share along with proportionate interest. This shall be inclusive of any amount, if any, already paid/released to them. Balance amount shall remain invested for a period of five years; and

(f) Liberty is reserved to all the claimants to apply to the court for release of the amount if circumstances so warrant earlier also.

No Costs.