Raju Ouseph @ Sebastian v. Sebastian Vikas, Ancel Rodolph, and HDFC ERGO General Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 28TH DAY OF MAY 2019 / 7TH JYAISHTA, 1941** ## **OP (MAC).No. 15 of 2019** **AGAINST THE ORDER/JUDGMENT IN OPMV 289/2013 of ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL , ALAPPUZHA** ## **PETITIONER:** **RAJU OUSEPH @ SEBASTIAN AGED 55 YEARS S/O OUSEPH, ARYASSERY HOUSE, CHERTHALA SOUTH PANCHAYATH, WARD NO.17, ARTHUNGAL P.O., CHERTHALA.** **BY ADV. SRI.A.N.SANTHOSH** ## **RESPONDENTS:** |**1**|**SEBASTIAN VIKAS**| |---|---| ||**S/O GAFFAR,PANIKKAL THAYIL HOSUE, CHERTHALA**| ||**SOUTH PANCHAYATH, ARTHUNGAL P.O., WARD NO.22,**| ||**CHERTHALA-688 530.**| |**2**|**ANCEL RODOLPH**| ||**PALLIKKATHARAYIL HOUSE, ARTHUNGAL P.O.,**| ||**CHERTHALA-680 530.**| |**3**|**HDFC ERGO GENERAL INSURANCE COMPANY LTD.**| ||**6TH FLOOR, LEELA BUSINESS PARK, ANDERI EAST,**| ||**KURLA ROAD, MUMBAI-400059 REPRESENTED BY ITS**| ||**MANAGER.**| ||**BY ADVS.**| ||**SMT.K.S.SANTHI**| ||**SMT.LATHA SUSAN CHERIAN**| ||**SRI.GEORGE CHERIAN (SR.)**| **THIS OP (MAC) HAVING COME UP FOR ADMISSION ON 28.05.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 2 ``` OP(MAC) 15 OF 2019 ``` ## **JUDGMENT** The petitioner, who is the claimant in O.P.(MV)No.289 of 2013 on the file of the Addl. Motor Accidents Claims Tribunal-II, Alappuzha, has filed this original petition under Article 227 of the Constitution of India, seeking an order to set aside Ext.P6 order dated 07.01.2019 of the Tribunal, whereby the interlocutory applications, i.e., I.A.No.937 of 2018 and 938 of 2018 filed by the 3[rd] respondent Insurer, stands allowed, thereby reopening the evidence and referring the petitioner to the Kerala State Medical Board, Thiruvananthapuram for getting his disability assessed by that Board. The operative portion of Ext.P6 order reads thus; “In the result, both petitions are allowed. The evidence is reopened. The petitioner is referred to the Kerala State Medical Board, Thiruvananthapuram for getting his disability assessed by the Board. There shall be direction to the Chairman of the Board to ensure that the assessment is completed within 30 days from the date of receipt of direction from this Tribunal. An amount of Rs.3,000/- shall be paid by the insurer to the petitioner for meeting the expenses of his journey to Thiruvananthapuram from Alappuzha for undergoing the assessment by the Board.” 2. On 12.02.2019, when this original petition came up for ``` OP(MAC) 15 OF 2019 ``` 3 admission, urgent notice on admission by speed post was ordered to respondents 1 and 2, returnable within two weeks. The learned Standing Counsel took notice for the 3[rd] respondent Insurer and sought time to file counter affidavit. 3. On 07.03.2019, when this original petition came up for consideration, this Court granted an interim order to the effect that the final disposal of O.P.(MV) No.289 of 2013 on the file of the Motor Accidents Claims Tribunal, Alappuzha shall be deferred for a period of one month. The said interim order was extended for a period of two months on 05.04.2019. 4. A counter affidavit has been filed by the 3[rd] respondent, opposing the reliefs sought for in this writ petition. 5. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P6 order dated 07.01.2019 of the Tribunal, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 6. Article 227 of the Constitution of India deals with power of superintendence over all courts by the High Court. `OP(MAC) 15 OF 2019` 4 Under clause (1) of Article 227 of the Constitution, every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. Clause (2) of Article 227 provides that, without prejudice to the generality of the provisions under clause (1), the High Court may call for returns from such courts; make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts. Going by clause (4), nothing in Article 227 shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces. 7. In **Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329]** the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such ``` OP(MAC) 15 OF 2019 ``` 5 a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. 8. In **Jai Singh v. Municipal Corporation of Delhi [(2010) 9 SCC 385]** , while considering the nature and scope of the powers under Article 227 of the Constitution of India, the Apex Court held that, undoubtedly the High Court, under Article 227 of the Constitution, has the jurisdiction to ensure that all subordinate courts, as well as statutory or quasi-judicial tribunals exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and `OP(MAC) 15 OF 2019` 6 jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well recognised constraints. It cannot be exercised like a 'bull in a china shop', to correct all errors of the judgment of a court or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. 9. In **K.V.S. Ram v. Bangalore Metropolitan Transport Corporation [(2015) 12 SCC 39]** the Apex Court held that, in exercise of the power of superintendence under Article 227 of the Constitution of India, the High Court can interfere with the order of the court or tribunal only when there has been a patent perversity in the orders of the tribunal and courts subordinate to it or where there has been gross and ``` OP(MAC) 15 OF 2019 ``` 7 manifest failure of justice or the basic principles of natural justice have been flouted. On the facts of the said case, the Apex Court held that, when the Labour Court has exercised its discretion keeping in view the facts of the case and the cases of similarly situated workmen, the High Court ought not to have interfered with the exercise of discretion by the Labour Court. 10. In **Sobhana Nair K.N. v. Shaji S.G. Nair [2016 (1) KHC 1]** a Division Bench of this Court held that, the law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law. 11. In view of the law laid down in the decisions referred `OP(MAC) 15 OF 2019` 8 to supra, the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India cannot sit in appeal over the findings recorded by a lower court or tribunal. The supervisory jurisdiction cannot be exercised to correct all errors of the order or judgment of a lower court or tribunal, acting within the limits of its jurisdiction. The correctional jurisdiction under Article 227 can be exercised only in a case where the order or judgment of a lower court or tribunal has been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. Therefore, no interference under Article 227 is called for, unless the High Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted. 12. In the instant case, by Ext.P6 order, the Tribunal has reopened the evidence in O.P.(MV) No.289 of 2013 and referred the petitioner herein, who is the claimant in that case, to the `OP(MAC) 15 OF 2019` 9 State Medical Board for getting his disability assessed. The Tribunal has passed Ext.P6 order on the interlocutory applications filed by the 3[rd] respondent Insurer. 13. During the course of arguments, on a specific query made by this Court, the learned counsel for the petitioner would fairly submit that, Ext.P2 disability certificate produced before the Tribunal is not one issued by the District Medical Board based an order of reference of the Tribunal, whereby the claimant has been referred to the District Medical Board for assessment of his disability. 14. Having considered the submissions made by the learned counsel on both sides, this Court finds that the reasoning of the Tribunal, as contained in paragraphs 4 and 5 of Ext.P6 order, for reopening the evidence and referring the petitioner/claimant to the State Medical Board to assess his disability cannot be said to be perverse or patently illegal, warranting an interference of this Court, in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India. `OP(MAC) 15 OF 2019` 10 15. In the result, this original petition fails and the same is accordingly dismissed. The direction contained in Ext.P6 order dated 07.01.2019, whereby the Chairman of the State Medical Board is directed to ensure assessment of the disability of the petitioner/claimant, within 30 days from the date of receipt of a certified copy of Ext.P6 order, will stand modified as three weeks from the date of production of a certified copy of this judgment, by the petitioner/claimant or the 3[rd] respondent Insurer. Sd/- **ANIL K. NARENDRAN JUDGE** **yd** 11 ``` OP(MAC) 15 OF 2019 ``` ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **A TRUE PHOTOCOPY OF THE CLAIM PETITION IN OP(MV) NO.289/2013 DATED 10.3.2013 OF THE ADDL. MACT-II ALAPPUZHA.** **EXHIBIT P2** **A TRUE PHOTOCOPY OF THE DISABILITY CERTIFICATE DATED 20.3.2015.** **EXHIBIT P3** **A TRUE COPY OF THE I.A.NO.937/2018 IN O.P.(MV) NO.289/2013 DATED 9.8.2018.** **EXHIBIT P4** **A TRUE COPY OF THE I.A.NO.938/2018 IN O.P.(MV) NO.289/2013 DATED 9.8.2018.** **EXHIBIT P5** **A TRUE COPY OF THE OBJECTION DATED 7.9.2018 IN O.P.(MV) NO.289/2013.** **EXHIBIT P6 A TRUE COPY OF THE COMMON ORDER DATED 7.1.2019 IN I.A.NOS.937/2018 AND 938/2018 IN O.P.(MV) NO.289/2013.** **RESPONDENTS EXHIBITS:** **EXHIBIT R3(A) TRUE COPY OF THE DISCHARGE SUMMARY OF THE PETITIONER ISSUED FROM TALUK HOSPITAL CHERTHALA.** **TRUE COPY** **P.A. TO JUDGE**