Hari Krishna Ojha vs Smt. Leelawati & Others
2013 Latest Caselaw 6100 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
LUCKNOW BENCH, LUCKNOW
 
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Court No. - 5
 

 
Case :- CIVIL REVISION No. - 111 of 2013
 
Revisionist :- Hari Krishna Ojha
 
Opposite Party :- Smt. Leelawati & Others
 
Counsel for Revisionist :- Anil Kumar Srivastava
 
Counsel for Opposite Party :- Atul Misra,Umeshwar Pratap Pandey,Waqar Hashim
 
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Hon'ble Ritu Raj Awasthi,J.

Vakalatnama filed today by Mr. Waqar Hashim, Advocate on behalf of respondent no. 8 in Court is taken on record.

Heard Mr. Anil Kumar Srivastava, learned counsel for revisionist, Mr. Umeshwar Pratap Pandey, learned counsel for respondent-claimants, Mr. Atul Misra, learned counsel for respondent-Driver as well as Mr. Waqar Hashim, learned counsel for respondent-Insurance Company and perused the records.

The instant civil revision under Section 115 Code of Civil Procedure, 1908 (for short the 'Code') has been filed against the judgment and order dated 31.7.2013 passed by the Motor Accident Claims Tribunal/Special Judge, SC/ST Act, Gonda in Review Petition No. 31 of 2008 (Smt. Leelawati and Others Vs. Hari Krishna Ojha) arising out of the Claim Petition No. 109 of 1996 (Smt. Leelawati Vs. Hari Krishan Ojha and Others).

Learned counsel for revisionist submits that the learned Tribunal while deciding the claim petition had wrongly come to conclusion that the vehicle involved in the accident i.e. UP 43/5376 was not insured with the respondent-Insurance Company on the date of occurrence of accident i.e. 18.10.1992. The Tribunal has wrongly fastened the liability to pay the compensation on the revisionist being owner of the vehicle.

Submission is that the said offending vehicle was duly insured with the respondent-Insurance Company for the period 07.09.1992 to 06.09.1993. The vehicle was transferred in the name of one Mohd. Sageer Ahmad on 28.4.1993, as such, the insurance policy was issued afresh for the remaining period i.e. 29.4.1993 to 06.09.1993.

The learned Tribunal did not take care of the aforesaid fact and did not call for the original records from the Insurance Company to verify the aforesaid fact. The revisionist after receiving the relevant documents to show that the said vehicle was duly insured at the time of occurrence of accident had filed the review petition before the learned Tribunal which was registered as Misc. Case No. 26 of 2008. The learned Tribunal by the impugned order has rejected the review petition holding that there is no error apparent on the face of record and the Court cannot appreciate any new evidence in the review.

Submission is that it was the specific case of the revisionist before the Tribunal, while contesting the claim petition, that the vehicle was duly insured and the original policy was surrendered to the Insurance Company after the transfer of vehicle in the name of Mohd. Sageer Ahamd. The burden to prove was on the Insurance Company to show that the vehicle was not insured at the time of occurrence of accident. The Insurance Company in spite of direction of the learned Court below to verify the aforesaid fact had failed to show that the vehicle was not insured at the time of occurrence of accident and, as such, adverse inference was required to be drawn against the Insurance Company, however, the learned Tribunal has committed gross illegality in rejecting the review petition on the ground that since no evidence was produced by the claimants or the owner of the vehicle to establish that the vehicle was duly insured at the time of occurrence of accident, as such, there is no error apparent on the face of order of the award.

Learned counsel for the revisionist relying on Order XLVII Rule 1 of the Code submitted that it is the inherent power of the Tribunal to make necessary correction in the judgment and award, in case on the basis of discovery of new fact or evidence or matter the Court is of the opinion that an error is apparent on record.

The revisionist through the review petition had brought on record the cover note dated 07.09.1992 issued to the revisionist under Right to Information Act by respondent-Insurance Company which clearly goes to establish that the offending vehicle, at the time of occurrence of accident, was duly insured. The learned Tribunal as such was required to make necessary correction in the judgment and award dated 28.8.2008 by allowing the review petition, however, the learned Tribunal has committed gross illegality in rejecting the review petition.

In support of his submissions, learned counsel for revisionist relies on the following judgments:

(i) Sandhya Vaish and another Vs. The New India Insurance Company Ltd. and Others; [2010 (28) LCD 689].

(ii)The Oriental Insurance Company Limited Vs. Tasneem Arzoo and another; [2010 AICC 465].

Mr. Waqar Hashim, learned counsel for respondent-Insurance Company, on the other hand, has raised objection regarding maintainability of the revision on the ground that there is no statutory power of review provided under the Motor Vehicles Act. The review petition filed by the revisionist was itself not maintainable and, as such, the revision filed against the said order is also not maintainable and is liable to be rejected.

It is submitted that in the claim petition the present revisionist was impleaded as one of the respondents being the owner of vehicle. The burden of proof was on the revisionist to establish before the Tribunal that the vehicle was duly insured at the time of occurrence of accident. There was nothing on record before the Tribunal, while deciding the claim petition, that the vehicle was insured at the time of occurrence of accident.

The learned Tribunal while deciding the claim petition had framed certain issues including the issue as to whether the vehicle, at the time of occurrence of accident, was duly insured with the respondent-Insurance Company or not. The learned Tribunal while deciding the said issue had come to conclusion that the cover note no. 792009 indicates that the vehicle was insured for the period 29.4.1993 to 06.09.1993 which was issued in the name of Mohd. Sageer Ahmad, s/o Abudl Salam. The accident had taken place on 18.10.1992, as such, the Tribunal had come to conclusion that at the time of occurrence of accident the vehicle was not duly insured as such had held that the liability to pay compensation is on the revisionist being owner of the vehicle.

It is submitted by Mr. Waqar Hashim, learned counsel for respondent-Insurance Company that in absence of any statutory power of review the learned Tribunal was not competent to review the judgment and award dated 28.8.2008 on merit. The evidence produced by the revisionist at the time of filing of the review petition would amount to re-appreciation of evidence which, first of all, is not permissible under the power of review and more-so when there is no such statutory power was conferred on the Tribunal.

Learned counsel for respondent-Insurance Company also submitted that the Insurance Company has denied the cover note of the policy dated 07.09.1992 which was annexed with the review petition.

In support of his submissions, learned counsel for respondent-Insurance Company relies on the Division Bench judgment of this Court in the case of National Insurance Company Ltd. Vs. Smt. Jairani and Others; [2009 (27) LCD 476].

I have considered the submission made by the parties' counsel and perused the records.

The learned Tribunal vide judgment and award dated 28.8.2008 had allowed the Claim Petition No. 109 of 1996 whereby an amount of Rs. 2,29,500/- was awarded as compensation to the claimants which was to be paid by the present revisionist. The learned Tribunal had held that the offending vehicle at the time of occurrence of accident was not duly insured with the respondent-Insurance Company and the issue in this regard is decided in favour of respondent-Insurance Company.

It is the admitted position between the parties that at the time of deciding the claim petition the cover note dated 07.09.1992 of policy no. 002P00719 was not before the Tribunal. The cover note dated 29.4.1993 relating to said policy was only on record.

The review petition was filed by the revisionist claiming that the vehicle was duly insured at the time of occurrence of said accident and in this regard cover note dated 07.09.1992 was brought on record through the review petition. The learned Tribunal while passing the impugned order has held that the judgment cannot be reviewed on merit, only any error apparent on record can be corrected. The evidence relied in the review petition could have been submitted before the Tribunal prior to passing of award dated 28.8.2008, in absence of the same, the award cannot be said to be bad, there is no ground to review the award, the application for review is rejected.

Learned counsel for revisionist as well as learned counsel for respondent-Insurance Company have argued at length about the maintainability of review petition in the proceedings under Motor Vehicles Act.

The question of maintainability of review has come before the Court on a number of occasions. The Court has been of the consistent view that in case there is any procedural error apparent on the face of record or there is any correction relating to arithmetical calculation, typing error or some small mistake occurred in the order, the competent Court has inherent power to correct the same whether there is any statutory provision of the review or not. However, the Court has also been of the view that in absence of any statutory provision of review, the order cannot be reviewed on merit.

In the light of aforesaid legal provision, the judgments cited by the parties' counsel are required to be considered.

In the case of Sandhya Vaish and another (supra), this Court vide judgment and order dated 26.2.2010 had allowed the civil revision and order passed rejecting the review petition was set aside. In the said case, the learned Tribunal while deciding the claim petition had awarded interest at the rate of 9%, however, the Tribunal had failed to provide as to from which date the said interest was to be paid. The review petition filed was rejected on the ground that it is not maintainable. The matter came up before the High Court in revision. The High Court while allowing the revision came to conclusion that it was a procedural mistake in the award in not providing the date from which the awarded interest was to be paid which could have been corrected by the Tribunal itself. The relevant paragraphs of the judgment are reproduced as below:

"Therefore, the finding of the Tribunal that the interest could not have been awarded is devoid of merit and baseless and the Tribunal ought to have corrected the omission on its part in failing to award the interest from the date of filing of the claim petition and the interest should have been awarded from the date of filing of the claim petition.

The question of maintainability of the review application cannot be doubted on account of the fact that the Tribunal was not lacking in its power of reviewing its order which resulting into material injustice to the claimants, who happen to be widows, daughter and sons in these cases. The legislature has not specifically prohibited the Claims Tribunal to follow the general procedure prescribed in the Code and when there is no specific prohibition for following the general procedure in an inquiry under Section 168 of the Act and moreso, when the wide discretion is vested in the Claims Tribunals under sub-section (1) of Section 169 of the Act. Court has no hesitation in holding that the Claims Tribunal failed to exercise the jurisdiction vested in it while rejecting the applications for review filed by the revisionists. The Tribunal ought to have considered the settled law in regard to the award of the interest and further it was not deprived of the power to entertain the review as the legislature has empowered the Claims Tribunal with wide power of discretion to follow such procedure as it thinks fit for holding the enquiry under Section 168 of the Act. The view expressed in Sunita Devi Singhania Hospital Trust (supra) compels this Court to take a view that if any application was moved for rectification of mistake, then the same was within the province of the Tribunal to correct the same in order to discharge the function effectively for the purpose of doing justice between the parties.

The review applications, therefore, were very well maintainable before the Tribunal and the Tribunal failed to exercise the jurisdiction vested in it in accordance with law for correcting the said omission.

The revisions are accordingly allowed. The orders dated 01.03.2008 and 19.04.2008 rejecting the review applications are set aside. The revisionists shall be entitled for the interest at the rate of 9% from the date of filing of the claim petitions excluding the period for which the Tribunal had directed that the revisionists shall not be entitled for the interest."

In the case of The Oriental Insurance Company Limited Vs. Tasneem Arzoo and another (supra) the Division Bench has held that the Tribunal has not committed any illegality or jurisdictional error in rectifying the patent error or law committed by it in applying the wrong multiplier upon admitted facts. The Motor Accident Claims Tribunal has all the trappings of a Civil Court and has inherent powers of review its own orders like a civil Court to correct/rectify patent error of fact or of law committed by itself. The relevant paragraphs 6 & 7 of the judgment on reproduction read as under:

"6. The submission of the learned Counsel for the appellant that by allowing the claimant's application, the claims tribunal has illegally reviewed its earlier judgment on merits without there being any statutory provision of review under the Motor Vehicles Act has no force and is liable to be summarily rejected. Hence the impugned award is not liable to be interfered with on the aforesaid ground. We are satisfied that the claims tribunal has not committed any illegality or jurisdictional error in rectifying the patent error of law committed by it in applying the wrong multiplier upon admitted facts. It has been held by this Court in 1995 (2) T.A.C. 664, Oriental Insurance Company Ltd. V. Fida Ali and others that a Motor Accident Claims Tribunal has all the trappings of a civil Court and has inherent powers of review its own orders like a civil Court to correct/rectify patent error of fact or of law committed by itself.

7. In the instant case, we are satisfied that the claims tribunal has not reviewed its earlier judgment on merit but has merely rectified a patent error of law committed by itself by applying the wrong multiplier for determining the compensation upon admitted facts and the claims tribunal in the exercise of its inherent power rightly corrected the multiplier."

In the present case, the review petition was filed annexing the documents on the basis of which it was claimed that the offending vehicle was insured at the time of occurrence of accident and the Tribunal has wrongly fastened the liability to pay compensation on the revisionist-owner of the vehicle. In case the Tribunal had to consider the contention raised by the revisionist, it has to re-appreciate the evidence relied by the revisionist which touches the very merit of the case. As such, I am of the view that the Motor Accident Claims Tribunal in absence of any statutory power of review is not competent to review its judgment on merit.

In the case of Sandhya Vaish and another (supra) as well as The Oriental Insurance Company Limited Vs. Tasneem Arzoo (supra), the Court has come to conclusion that there is procedural error committed by the Court and the same can be rectified by the Tribunal in exercise of its inherent power. In fact, in the case of Sandhya Vaish and another (supra), the Tribunal had not provided from which date the interest awarded by it was to be paid whereas in the case of The Oriental Insurance Company Limited Vs. Tasneem Arzoo (surpa), the Tribunal had wrongly applied the multiplier for determining the compensation on admitted facts.

The Tribunals in exercise of its inherent power are competent to correct the patent error committed by itself, however, that is not the position in the present case as observed above, as such, I am of the view that the judgments cited by the learned counsel for revisionist are of not much help to him.

The Division Bench of this Court in the case of National Insurance Company Ltd. Vs. Smt. Jairani and Others (supra) has discussed in detail the power of review in the proceedings under Motor Vehicles Act and has held that Section 114 as well as Order XLVII Rule 1 of the Code are not applicable to the proceedings held under Motor Vehicles Act. It has been observed by the Division Bench in the said judgment that The Uttar Pradesh Motor Vehicle Rules, 1998 applies only some of the provisions of the Code to the summary proceedings before the Motor Accident Claims Tribunal which does not include Section 114 or Order XLVII Rule 1 of the Code. The relevant paragraphs 12, 13, 14 on reproduction read as under:

"12. If an award is made without deciding the application under Section 170 of the Act it may be bad for omission to deny the right to contest to the insurer which is a vital right. Section 170 of the Act confers a right on the insurance company to file an application if the conditions mentioned in the section are satisfied. It also casts a duty on the tribunal to decide it in accordance with law. If the tribunal has failed to perform its legal duty, the insurance company cannot be deprived of its right to contest on merits. In law, the insurance company cannot apply for review of the award as under the Act power of review had not been conferred on the tribunal. The Uttar Pradesh Motor Vehicle Rules 1998 (in brief the 'Rules') applies only some of the provisions of the Code of Civil Procedure, 1908 to the summary proceedings before the Motor Accident Claims Tribunal. The provision of Rule 221 of the Rules 1998, is extracted below:

221. Code of Civil Procedure to apply in certain cases- The following provisions of the First Schedule to the Code of Civil Procedure, 1908, shall, so far as may be, apply to proceedings before the Claims Tribunal, namely, Rules 9 to 13 and 15 to 30 of Order V; Order IX; Rules 3 to 10 of Order XII; Rules 2 to 21 of Order XVI; Order XVII; and Rules 1 to 3 of Order XXIII.

13. Order XLVII of the Code of Civil Procedure 1908 has not been made applicable to the proceedings before the tribunal. The insurance company is rendered remedy less if the application under Section 170 of the Act is not decided. Since review application is not maintainable no other application with whatsoever nomenclature would be maintainable. By Rule 221 of the Rules only limited provisions of the Code of Civil Procedure, 1908 have been applied to the proceedings before the tribunal. Section 114 or Order 47 of the Code of Civil Procedure had not been made made applicable to the proceedings before the tribunal. It is well settled that the right of appeal, revision or review are the creations of statute and no litigant has got an inherent right to prefer appeal, revision or review except if wrangled through fraud or misrepresentation [See United India Insurance Co. Ltd. v. Rajendra Singh and others; 2000 (2) TAC 613 (SC) and Rajendera Kumar and Others v. Rambhai and Others, 2003 (1) TAC 492 (SC)].

14.Therefore, we are of the considered opinion that Section 170 being mandatory and award made by the tribunal without deciding the application would be a nullity and review application or any other application with whatsoever nomenclature, except for correction of clerical or arithmetical errors, would not be maintainable before the tribunal."

Since I have come to conclusion that the evidence relied by the revisionist while filing the review petition would amount to re-appreciation of evidence which will touch the merit of the judgment and award passed by the Tribunal, as such, I am of the view that the review petition filed by the revisionist was not maintainable. The learned Tribunal has rightly rejected the review petition.

The instant civil revision as such having no force is dismissed.

However, the revisionist shall have the right to challenge the judgment and award dated 28.8.2008 passed in Claim Petition No. 109 of 1996 by filing First Appeal From Order before the High Court.

[Justice Ritu Raj Awasthi]

Order Date :- 27.9.2013

Santosh/-