1. This is a special appeal under Section 18 of the Rajasthan High Court Ordinance against the judgment of the learned single Judge dated January 9, 1984.
2. On 13.8.1977, an accident occurred between the motor vehicle truck No. MPN 5606 and the scooter No. RJY 6850 which was being driven by Subhendra Bhushan Acharya along with Gyan Chand, who was sitting on the pillion, near village Palasiyakheda Ganeshji on the Ajmer-Jaipur Road which is a part of National Highway No. 8. In the said accident, Subhendra Bhushan expired on the spot and Gyan Chand expired while being carried to the hospital from the place of accident.
3. As a result of the accident, two claim petitions were filed, one No. 62 of 1977 by Lad Kanwar and others, respondent Nos. 1 to 3 and the other being No. 7 of 1978 by Shakuntala Acharya and four others before the Motor Accidents Claims Tribunal (District Judge), Ajmer, against Pritam Singh, the owner of the motor vehicle, respondent No. 4 and Ram Chandra, the driver of the said vehicle, respondent No. 5. The New India Assurance Co. Ltd. was added as a respondent.
4. Both the claim petitions were allowed by a single award on 12.2.1980. The Motor Accidents Claims Tribunal (hereinafter to be referred to as 'the Tribunal') allowed Rs. 1,72,520/- in favour of Lad Kanwar and others, respondent Nos. 1 to 3 and a sum of Rs. 2,05,520/- in favour of Shakuntala Acharya and others. The Tribunal further held that since the liability of the New India Assurance Co. Ltd. was confined to the amount of Rs. 50,000/-, it apportioned the same in the sum of Rs. 23,238/- to be paid to the respondents, Lad Kanwar and others and a sum of Rs. 26,762/- to be paid to Shakuntala Acharya and others.
5. Being aggrieved, two appeals were preferred by the motor vehicle owner Pritam Singhone in the claim petition No. 62 of 1977 against Lad Kanwar and others and the other appeal No. 91 of 1980 in respect of the award in claim petition No. 7 of 1978. In both the appeals, the New India Assurance Co. Ltd. was added as a respondent.
6. Lad Kanwar and others, respondent Nos. 1 to 3, preferred cross-objections and claimed that the award passed in their favour be enhanced to Rs. 2,35,000/- and whole of the award be paid to them by the New India Assurance Co. Ltd. In the cross-objections, interest was also claimed.
7. Pritam Singh's appeal preferred against Shakuntala Acharya and others was dismissed while the appeal filed against Lad Kanwar and others also met the same result, but the cross-objections preferred by Lad Kanwar and others, respondent Nos. 1 to 3, were allowed, as a result of which the amount of compensation was enhanced to Rs. 1,98,360/-. The learned single Judge further awarded interest at the rate of 12 per cent per annum from the date of application, i.e., 31st October, 1977, till the date of realization. The learned single Judge reversed the judgment of the Tribunal about liability and held that the entire sum was payable by the New India Assurance Co. Ltd.
8. Against the judgment of the learned single Judge, this special appeal has been filed praying for reversal of the judgment of the learned single Judge on the ground that since the liability of the New India Assurance Co. Ltd. was limited to Rs. 50,000/-under the policy, the direction that the entire sum was payable by it was illegal and wrong.
9. Mr. R.M. Lodha, learned counsel for the respondents, raised a preliminary objection about the maintainability of the special appeal urging that under Section 18 of the Rajasthan High Court Ordinance, no appeal could be filed by the New India Assurance Co. Ltd. The basis of his submission was that under Section 110-D of the Motor Vehicles Act, 1939, the legislature has provided only one appeal against the judgment of the Claims Tribunal and as the Motor Vehicles Act regulating the procedure of compensation was exhaustive and laid down the filing of one appeal, the special appeal was incompetent and was liable to be dismissed. The emphasis of the learned counsel for the respondents was on the words
"aggrieved by an award of a Claims Tribunal may, within ninety days from the date of award, prefer an appeal to the High Court."
10. The learned counsel for the respondents relied upon a decision of the Madhya Pradesh High Court given in Uttam Singh v. National Insurance Co. Ltd. 1989 ACJ 38 (MP), wherein it was held:
We have taken the view that Section 110-D of the Motor Vehicles Act entitles the aggrieved person to lodge only one appeal in the High Court and, therefore, the power of the High Court to hear and decide the appeal is exhaustive, when that power is once exercised. The Letters Patent does not create any right of appeal but provides only forum for exercise of the right. The corpus of the right of appeal envisaged under Section 110-D cannot be enlarged to enable another appeal being filed at the same forum, namely, in the High Court. The remedy of the aggrieved person in such a case is not in the High Court, he has to go to the Hon'ble Supreme Court to assail the judgment of the High Court whether passed by a single Judge or Division Bench.
The submission of the learned counsel for the respondents appears to us to be well founded. The word 'an' used in Section 110-D of the Motor Vehicles Act means here one. The Motor Vehicles Act being the special Act dealing with the matters of motor accident claims, the right of filing an appeal shall be governed and controlled by Section 110-D of the said Act.
11. It is the settled principle of law that a special law is a law relating to a particular subject while a general law is a law confined to a particular area or territory.
12. The rule that the general provisions will not abrogate special provisions is well accepted. The question of the application of the principle of 'generalia specialibus non derogant' has been dealt with in the case of J.K. Cotton Spinning & Weaving Mills Co. Ltd. v. State of U.P., AIR 1961 SC 1170. The discussion made in that case leaves no doubt that special will prevail over the general if there is any conflict between two independent provisions of law. In the instant case, however, there is no conflict at all. It is the special law which will govern the controversy relating to the appeal.
13. Mr. B.P. Agrawal, learned counsel for the appellant, urged that as there is no provision in the Motor Vehicles Act debarring filing of a special appeal against the judgment of the learned single Judge, the present special appeal was competent.
14. We are unable to accept the submission of the learned counsel for the appellant. From the language used in Section 110-D of the Motor Vehicles Act and other relevant provisions, the only possible interpretation is that only one appeal lies.
15. All appeals exist merely by statute and unless the statutory conditions are fulfilled, no jurisdiction is given to any court of justice to entertain them. For this proposition, reference be made to the decisions reported in Att. General v. Sillem 1964 HLC 704 and Ohene Moore v. Akesseh Tayee, AIR 1935 PC 5. Consequently, an appeal cannot exist without a clear legislative provision. The legislature has to create an appeal if it intends to enact the same.
16. The learned counsel for the appellant urged that Section 18 of the Rajasthan High Court Ordinance, 1949, is very wide in its application. Whenever a judgment is given by a learned single Judge, that is appealable under the said section.
17. We are unable to accept the submission of the learned counsel for the appellant. Not only the language but also the context of the Motor Vehicles Act reveals and leads to an irresistible conclusion that the legislature has not since conferred the right of filing of a special appeal against the judgment of a learned single Judge, the present special appeal is incompetent.
18. The learned counsel for the appellant has relied upon the decisions reported in National Insurance Co. Ltd. v. Jugal Kishore, 1988 ACJ 270 (SC), Rajendra Kumari v. Shanti Trivedi 1989 ACJ 517 (SC) and British Indian General Insurance Co. Ltd. v. Maya Banerjee 1986 ACJ 946 (SC). These cases have no application to the present case.
19. It is well established that an insurer cannot take pleas beyond the scope of Section 96 (2) of the Motor Vehicles Act. Its right is confined to the matters enumerated therein. In British India General Ins. Co. v. Capt. Itbar Singh 1958-65 ACJ 1 (SC), the same law had been laid down. It should be remembered that it is not open to the insurance company to question the quantum of compensation. [See Raddipalli Chinnarao v. Reddi Lorurdu 1980 ACJ 470 (AP)].
20. The special appeal of the New India Assurance Co. Ltd. is liable to be failed on this ground also. On merits also, we are unable to find any substance. The Tribunal held the liability of the New India Assurance Co. Ltd. up to Rs. 50,000/- without the policy having been brought on record. The policy was with the New India Assurance Co. Ltd. The Tribunal was required to decide the quantum which was awardable against it. The New India Assurance Co. Ltd. since claimed its liability up to Rs. 50,000/-, it should have filed the policy to make out its case. As it did not do so, its case could not be established or proved. Before the learned single Judge, an application under Order 41, Rule 27 of the Code of Civil Procedure was also filed for bringing on record the policy. The learned single Judge rejected the application finding that no ground existed for invoking the said provision. We are also not satisfied that the New India Assurance Co. Ltd. could bring that document on record when it knowingly and deliberately did not file it before the Tribunal. The learned single Judge also rejected the application and the document in view of serious objections raised by the respondent Nos. 1 to 3 about its genuineness and correctness for the following reasons:
(1) The said document (purported policy of insurance) was neither original nor copy of original prepared by same process nor counter part of the original nor 'certified' under Section 2(5) of the Insurance Act, 1938;
(2) The said document is printed on the paper of 1977 whereas the date of policy admittedly was of 17.8.1976;
(3) That terms and conditions of the policy were absolutely missing and the annexed papers were all printed on the paper of '1977' and thereafter;
(4) The said document is on printed papers whereon the insurance company itself has printed true copy and there is no authenticity of the said document; and (5) That neither the said document was carbon copy of the original copy and as such not admissible.
The learned single Judge also expressed his doubts about the genuineness of the said document and dismissed the application for additional evidence. He thus refused to exercise the jurisdiction in favour of the New India Assurance Co. Ltd. and as that discretion has not been arbitrarily exercised, we sitting in appeal cannot reverse the same.
21. The burden of proof was on the New India Assurance Co. Ltd. It has been said by the American scholar, J.B. Thayer, that the term 'burden of proof is commonly used in two senses:
(i) the peculiar duty of him who has the risk of any given proposition on which parties are at issue, who will lose the case if he does not make this proposition out, when all has been said and done;
(ii) the duty of going forward in argument or in producing evidence, whether at the beginning of a case, or any later moment throughout the trial or discussion.
In the instant case, the policy having not been brought on record, the New India Assurance Co. Ltd. cannot take advantage by relying on the statement of the counsel made in its favour for the other side. His statement could not relieve the appellant of filing the document.
For the reasons given above, the special appeal fails and is dismissed with costs.