ORIENTAL INSURANCE CO LTD Vs. THIBBEGOWDA

JUDGEMENT

(1.) HEARD Mr. S. P. Shankar.

(2.) THE first question which has to be satisfied by the court is whether the Motor accidents Claims Tribunal is a civil court for the purpose of section 115 of the Civil procedure Code. Section 115 reads as under:

(3.) LEARNED counsel for the revisionistapplicants Mr. S. P. Shankar placed before me a Division Bench decision of this court in the case of Noreen R. Srikantaiah v. L. Dasarath Ramaiah, 1985 ACJ 628 (Kafnataka), in which case in the context of section 24, Code of Civil Procedure, it has been held that Tribunal is a court and transfer of case from one Tribunal to other is permissible. Firstly, this is not a case dealing with section 115 of Code itself. In this decision, it appears the attention of the learned Judges has not been invited and drawn to the provisions of section 110-F of the Motor Vehicles Act, 1939 pan materia of which is section 175 of Motor vehicles Act, 1988. When the legislature has clearly expressed the intention of excluding the jurisdiction of the civil court with reference to or from the matters covered by the Motor Vehicles Act and the claims Tribunals have been set up to deal with the motor accident claims, to conceive or assume the Tribunal to act as civil court would be something which may create conflict and confusion because once the jurisdiction of the civil court has been excluded completely, then to consider Motor accidents Claims Tribunal as civil court will run against the very letter and spirit of provisions of section 110-F of the Motor vehicles Act, 1939 as well as section 175 of the present Motor Vehicles Act of 1988. It will also run counter to the very letter and spirit and intention of the framers of the Constitution which provides two separate entities, namely, courts under one chapter and Tribunals in another Chapter vide Articles 323-A and 323-B of the constitution, and whereby it has been provided that State enactments constituting the Tribunals may exclude the jurisdiction of the civil court from the subjects and matters entrusted to the Tribunals for determination. So, therefore, to read or to think the Tribunal as civil court by itself runs counter to the letter and spirit of the constitution as well as to the provisions of section 175 of the Motor Vehicles Act. The attention of the Hon'ble Judges constituting the Division Bench has not been invited or drawn either to the provisions of the Constitution of India dealing with courts and Tribunals as distinct and separate entities or to the provisions of section 110-F of the Motor Vehicles Act of 1939 which is analogous to section 175 of the present Motor Vehicles Act of 1988. So as held in the case of A. R. Antulay v. R. S. Nayak, AIR 1988 SC 1531, as per the observations in paras 44, 49, 64 and 138, a decision which is per incuriam loses its binding force as a precedent. A decision per incuriam has been defined in that decision. In that case, their Lordships defined the expression 'per incuriam' vide para 44 as under: