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High Court Of Madhya Pradesh
P. K. Tare and S. P. Bhargava, JJ.
NEW INDIA INSURANCE CO.LTD., BOMBAY - Appellant
Versus
SMT.MOLIA DEVI AND ORS. - Respondents
Misc. (First) Appeal 174 Of 1966
Decided On : 12/17/1968
(2) General Clauses Act, 1897-S. 15-nppointmenr of an authority - may be made by name or official designation.
Section 15 of the General Clauses Act, 1897, empowers the appointing authority to appoint a functionary either by name or by virtue of office.
It is true that the person presiding over the Accident Claims Tribunal functions as a persona designata and not as a Court. But the appointment of Additional District & Sessions Judge as Claims Tribunal is not invalid on the ground that the notification may permit any person not having the qualifications mentioned in sections 110 (3) of the Motor Vehicles Act. Of course in that event be cannot claim to function as a Tribunal by virtue of the notification, as he would not be qualified to be appointed as a Claims Tribunal. In every case it would be necessary to examine whether the persons functioning as a Tribunal is qualified or not.
The question in each case to be decided on facts and circumstances would be whether the appointment by official designation has actually resulted in the appointment of an unqualified person for a particular office or Tribunal. If it results that way the appointment would certainly be invalid. But if it does not, we would like to propound that the Notification would be perfectly valid and the same cannot be challenged on the ground that in a remote case it might result in the appointment of a person who is not qualified. 1969 JLJ SN 15 overruled. ILR 1966 (2) Punj. 212. AIR 1959 Tripura 16, AIR 1960 AP 282, AIR 1963 Mysore 157. AIR 1957 Mad. 351, AIR 1952 Hyd. 144 & ILR 1965 (2) Punj. 751 referred to. [Paras 5 to 10
(3) Civil Courts Act, 1958 (M. P.) -S.7 (2)-Additional District Judge-powers of.
An Additional District Judge can be empowered by the State Government or by a general or a special order to be passed by the District Judge and if so empowered, he can perform the functions of a Principal Civil Court of original jurisdiction. [Para 11
(4) Civil P.C., 1908 - S.115 - scope of-a notification cannot be quashed-it may be declared invalid-Constitution of India Art. 226.
In a Civil revision a notification can only be declared invalid and could not be quashed which might properly be done in exercise of prerogative rights under Art. 226 of the Constitution. In actual fact it would make no difference whether a Notification is quashed or declared invalid. It is only a question of proper phraseology. [Para 12
(5) Motor Vehicles Act, 1939-5s. 95 (2) (a) & 96 (2)-damages not exceeding statutory limits - Insurance Company cannot challenge the quantum -grounds for challenge.
The quantum of compensation cannot be allowed to be challenged by the Insurance Company if it does not exceed the statutory limit.. 1968 JLJ 189 relied on. AIR 1962 SC I referred to. [Para 20
An Insurance Company can challenge the award only on the grounds mentioned in section 96 (2) of the Act. [Para 23
(6) Civil P.C., 1908 - O.41. R.33 - appeal by insurer-owner of the truck cannot be allowed to invoke the powers under Rule 33 of Order 41 - Motor Vehicles Act, 1939-Ss. 95 & 96.
Where the insurer alone filed an appeal, and the owner of the truck moved to be made an appellant after The expiry of the period of limitation for appeal, to allow the owner to invoke the powers under O. 41, R. 33, in his favour would been abuse of the process of the Court so as to set at naught the specific provisions as contained in sections 95 and 96 of the Motor Vehicles Act. [Para 24
( 2 ) THE following Notification was Issued:
"notification No. 3307/2/a-2, Bhopal, dated 25 May, 1965/ Motor vehicles Act, 1939, No. 4 of 1939. . . (VERNACULAR MATTER OMMITED ). . Previously appointment used to be made by name, but that practice was given up and the appointment by official designation came to be made.
( 3 ) OUR learned brother Naik J. felt that that Notification was in violation of Section 110 of the Act in so far as it permits a person to be a member of the Tribunal who may not fulfil the qualifications enunciated in Sub-section (3) of Section 110 of the motor Vehicles Act, 1939. It was argued before him that the Second Additional district Judge, Raipur, need not necessarily be a person who fulfils the requirementsof Section 110 of the Act, because in the State of Madhya Pradesh an Additional District Judge is neither a District Judge, nor a person who is necessarily qualified for appointment as a Judge of the High Court. Article 217 of the Constitution of India prescribes the qualifications for appointment of a person as a Judge of a High Court to the effect that he must have put in 10 years' practice at the High Court Bar or must have held a judicial office in the territory of India at least for 10 years. Therefore, Naik J. thought that there might be a conceivable case where a person may be an Additional District Judge who has not fulfilled the qualifications prescribed for appointment as a Judge of a High Court under Article 217 of the constitution of India. Referring to the definition of a 'district Judge' in Article 236 of the Constitution of India Naik J. observed that although it may include a Judge of a Civil Court, Additional District Judge, Joint District Judge. Assistant District judge, Chief Judge of a Small Cause Court, Chief Presidency Magistrate, Additional chief Presidency Magistrate. Sessions Judge Additional Sessions Judge and assistant Sessions Judge, but that definition, as the Article itself shows, is for the purposes of Chapter VI of part VI of the Constitution of India. It can have no relevance for the purpose of interpreting the expression 'district Judge' as occurring in the Motor Vehicles Act. Referring to the definition of a 'district Judge' as provided in Section 3 (17) of the General Clauses Act (X of 1897), he observed that it would mean 'the Judge of a principal Civil Court of Original Jurisdiction'. The question, therefore, would be whether an Additional District Judge is the judge of a principal Civil Court of Original Jurisdiction. The answer would be that he is not, because under Section 3 of the Madhya Pradesh Civil Courts Act, 1958, there would be four classes of Civil Courts --the Court of the District Judge, the court of the Additional District Judge, the Court of Civil Judge Class I and the court of Civil Judge Class II and under Section 7 of that 'act, the Principal Civil court of Original Jurisdiction is the Court of the District Judge. Therefore. Naik J. thought that the Additional District Judge could never be considered to be the principal Civil Court of Original Jurisdiction. We propose to deal with these various reasons presently.
( 4 ) SECTION 15 of the General Clauses Act, 1897, empowers the appointing authority to appoint a functionary either by name or by virtue of office. So far as
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