Bombay High Court
Icici Lombard General Insurance Co. Ltd vs Smt. Namrata Anil Yadav (Widow Of ... on 10 January, 2024
Bench: G.S. Patel, Madhav J Jamdar
2024:BHC-AS:1322 3-ASRPFST-11032-2023 IN FA-463-2020.DOC
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
REVIEW PETITION (ST) NO. 11032 OF 2023
IN
FIRST APPEAL NO. 463 OF 2020
WITH
INTERIM APPLICATION NO. 317 OF 2024
IN
REVIEW PETITION (ST) NO. 11032 OF 2023
ICICI Lombard General Insurance Co Ltd ...Petitioner
(Orig. Respondent No. 2)
In the matter between
Namrata Anil Yadav (Widow of Deceased) & ...Appellants
Ors (Orig. Claimants)
Versus
Bhupendra Manohar Bhoir & Anr ...Respondents
Mrs Varsha Chavan, for the Petitioner.
Mr Sandeep R Mishra, i/b JP Gadhiya, for the Original Appellant
Digitally
signed by
and Respondent in Review Petition.
SHEPHALI
SHEPHALI SANJAY
SANJAY MORMARE
MORMARE Date:
2024.01.12
10:25:07
+0530
CORAM G.S. Patel &
Madhav J Jamdar, JJ.
DATED: 10th January 2024
PC:-
10th January 2024
3-ASRPFST-11032-2023 IN FA-463-2020.DOC
INTERIM APPLICATION NO. 317 OF 2024:
1. For the reasons stated in the Interim Application, the delay is
condoned, and the Interim Application is made absolute in terms of
prayer clause (a).
REVIEW PETITION (ST) NO. 11032 OF 2023:
2. The Review Petition is filed after the Special Leave Petition
against our reasoned order and judgment of 13th April 2022 was
rejected on 16th December 2022 with the specific finding that the
Supreme Court did not find any reason to entertain that Petition.
3. Notably, no leave was sought before the Supreme Court to file
a review. That may not matter much, but the Petition accepts that
the Review Petition is filed after the Special Leave Petition ("SLP")
was dismissed. Indeed it says it is filed since the Review Petitioner is
"aggrieved" by the dismissal of the SLP, and hence has filed his
Review Petition. Ms Chavan for the Review Petitioner immediately
agrees that the submission is wholly incorrectly placed.
4. We are astonished at the approach of the insurer which has
refused to pay the compensation ordered. This is to be deprecated
because the only submission before us is not positioned under
either Section 114 or properly under Order 47 of the Code of Civil
Procedure 1908. An exception is taken instead to a particular
phrasing in sub-paragraph (VIII) of paragraph 32 of our judgement
and the use of the word 'independent witness' with a suggestion
10th January 2024
3-ASRPFST-11032-2023 IN FA-463-2020.DOC
that this was a less than felicitous phrasing and therefore the entire
judgment is liable to be reviewed. The Supreme Court evidently did
not think so. Further, our conclusion after considering the position
in law and on the question of negligence and contributory
negligence is summarised in paragraph 37, viz., that the accident
took place solely due to rash and negligent driving of the driver of
the offending Tempo. In so holding, we negatived the finding of the
Tribunal that there was any element of contributory negligence on
the part of the deceased or that there was any question of
apportionment of negligence between the deceased and the tempo
driver. We therefore held that the Appellants were entitled to
compensation entirely to the extent of 100%.
5. It is not asserted before us that our judgment fails to take into
account the evidence or any part of the record before the Trial
Court. What is being alleged is that one particular witness, namely
the Investigating Officer, had to be regarded as an independent
witness and we could not have held that the 2nd Respondent namely
the present Review Petitioner, had 'failed to examine any
independent witness'. Indeed, there is an extended discussion on the
evidence and testimony of the investigating officer in paragraph 29.
The conduct of the police has been adversely commented upon. No
review is sought of any of these findings that only of a description,
i.e., the phrase 'independent witness'.
6. In the result, we see no ground is made out for review.
7. The Review Petition is rejected.
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3-ASRPFST-11032-2023 IN FA-463-2020.DOC
8. In the facts and circumstances of the case, there will be no
order as to costs.
(Madhav J Jamdar, J) (G. S. Patel, J)
10th January 2024
