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CASE NO.:

Appeal (civil) 557 of 2003

PETITIONER:

Sadhana Lodh

RESPONDENT:

National Insurance Company Ltd. & Anr.

DATE OF JUDGMENT: 24/01/2003

BENCH:

CJI., S. B. Sinha & AR. Lakshmanan

JUDGMENT:

J U D G M E N T

(Arising out of S.L.P. No. 21854 of 2001)

KHARE, CJI.

Leave granted.

The appellant's son, aged 24 years and drawing a sum of Rs.

4,000/- per month, died in a motor vehicle accident. The appellant

herein filed a claim petition before the Motor Accidents Claims

Tribunal (hereinafter referred to as 'the Tribunal'). The Tribunal

awarded a sum of Rs. 3,50,000/- as compensation. Aggrieved, the

insurer, who is respondent No. 1 herein, filed a writ petition under

Articles 226 and 227 of the Constitution of India before the Guwahati

High Court. A learned Single Judge of the High Court dismissed the

writ petition. Aggrieved, the insurer preferred a Letters Patent Appeal

before the Division Bench of the High Court. Before the High Court,

the claimant took an objection that since petition under Article

226/227 is not maintainable, therefore, the appeal is totally

misconceived and the same deserves dismissal on that ground alone.

However, the Division Bench of the High Court, after overruling the

objection allowed the appeal preferred by the insurer and reduced the

compensation from Rs. 3,50,000/- to Rs. 3,00,000/-. It is against the

said judgment, the present appeal has been filed by way of special

leave petition.

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.

It is not disputed that under Section 173 of the Act, an insurer

has right to file an appeal before the High Court on limited grounds

available under Section 149(2) of the Act. However, in a situation

where there is a collusion between the claimant and the insured or

the insured does not contest the claim and further if the Tribunal does

not implead the insurance company to contest the claim, in such a

situation it is open to an insurer to seek permission of the Tribunal to

contest the claim on the ground available to the insured or to a

person against whom a claim has been made. If permission is

granted and the insurer is allowed to contest the claim on merit, in

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that case it is open to the insurer to file an appeal against the award

of the Tribunal on merits. Thus, in such a situation, the insurer can

question the quantum of compensation awarded by the Tribunal.

However, learned counsel for the respondent argued that since

an insurer has limited grounds available under Section 173 of the Act,

it is open to an insurer to file a petition under Article 226/227 of the

Constitution.

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 Article

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,

Chandigarh vs. Nicolletta Rohtagi and others 2002(7) SCC 456).

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 if 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 CPC 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 C.P.C., 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 C.P.C., 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.

The supervisory jurisdiction conferred on the High Courts under

Article 227 of the Constitution is confined only to see whether an

inferior court or Tribunal has proceeded within its parameters and not

to correct an error apparent on the face of the record, much less of an

error of law. In exercising the supervisory power under Article 227 of

the Constitution, the High Court does not act as an Appellate Court or

the Tribunal. It is also not permissible to a High Court on a petition

filed under Article 227 of the Constitution to review or re-weigh the

evidence upon which the inferior court or Tribunal purports to have

passed the order or to correct errors of law in the decision.

For the aforesaid reasons, we are of the view that since the

insurer has a remedy by filling an appeal before the High Court, the

High Court ought not to have entertained the petition under Article

226/227 of the Constitution and for that reason, the judgment and

order under challenge deserves to be set aside. We, accordingly, set

aside the judgment and order under appeal. The appeal is allowed.

There shall be no order as to costs. However, it would be open to the

insurer to file an appeal if it is permissible under the law.

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