Jeet Singh vs National Insurance Cojmpany Ltd. ...
2009 Latest Caselaw 3106 Del

       IN THE HIGH COURT OF DELHI AT NEW DELHI


       R.P. No. 188/2008 in MAC APP No.30/2006



                       Judgment delivered on: 11th August,2009

Jeet Singh                                  ..... Appellant.
                       Through:   Mr. Seeraj Bagga, Adv.


                       versus

National Insurance Company Ltd. & Ors.  ..... Respondents

Through: Mr. Manoj Ranjan Sinha for Respondent no.1 CORAM:

HON'BLE MR. JUSTICE KAILASH GAMBHIR,

1. Whether the Reporters of local papers may Yes be allowed to see the judgment?

2. To be referred to Reporter or not?                    Yes
3. Whether the judgment should be reported               Yes
     in the Digest?


KAILASH GAMBHIR, J. (Oral):

1. By way of the present application filed by the applicant

under Order 47 Rule 1 CPC, the applicant seeks review and

reconsideration of the order dated 28.3.2008 passed by this court

in MAC APP No. 30/06 whereby the appeal filed by the applicant

was dismissed and order of the learned MACT was upheld.

2. The grounds taken by the applicant in the review

application inter alia are that the issue relating to the compliance

of Rule 3(b) of the Central Motor Vehicles Rule, 1989 already stood

decided in favour of the applicant in the collateral proceedings

between the applicant and respondent no.1 by the court of

District Consumer Redressal Forum but the said decision of the

Consumer Forum could not be brought to the notice of this court

at any stage of the appeal. As per the applicant the said decision

of the Consumer Court is binding between the parties, and the

same cannot be re-agitated being barred by the principles of

constructive res judicata envisaged under Section 11 of C.P.C. It

has also been stated that in the absence of any evidence led by

respondent no.1 to establish any breach on the part of the

applicant, no liability to pay compensation amount could be

fastened on the applicant. The counsel for the applicant also

stated that it could not be brought to the notice of this court at the

time of hearing of the appeal that the learned MACT wrongly

formed an opinion so far the identity of Mr. Daljeet Singh,

trainer/driver was concerned after placing reliance on the FIR while

ignoring the other circumstances. As regards the driving licence

of Daljeet Singh, the applicant took a stand that the driving

licence of Daljeet Singh was never an issue between the parties,

and therefore, the same was not placed in support of the appeal

due to over sight by the applicant which was otherwise a part of

the original record and therefore to hold otherwise would be

contrary to the records. The counsel for the applicant contended

that there is an apparent error on the face of the record, more

particularly, when the driving licence of Daljeet Singh formed part

of the original record.

3. Opposing the present application, the National

Insurance Company/respondent no.1 in its reply averred that the

findings of the Consumer Court cannot have any binding effect on

the Tribunal constituted under the Motor Vehicles Act, where the

Tribunal arrives at a decision after taking into consideration the

pleadings, documents and evidence adduced by the respective

parties in support of their respective pleas. The applicant, as

per the respondent, has failed to produce any evidence to prove

that Daljeet Singh was having a valid and effective driving licence

at the time of the accident due to which the Tribunal gave a

categorical finding to hold that Daljeet Singh was not in possession

of an effective driving licence at the relevant time and therefore,

at the stage of the review, the applicant cannot be allowed to

reopen the case or to re-agitate the settled issues. It is also stated

that the learned MACT as well as the Appellate Court in the

concurrent findings have reached to the conclusion that the

applicant failed to prove compliance of sub-Rule (b) of Rule 21 of

Central Motor Vehicles Rules, 1989.

4. The respondent based on the above submissions

contended that the review filed by the applicant is not at all

maintainable and deserves to be dismissed.

5. Counsel appearing for the applicant strongly urged

that so far as the compliance of Rule 3(b) of the Central Motor

Vehicles Rules, 1989 is concerned, the same stood finally

concluded between the parties with the decision of the consumer

court where also the respondent no.1 had claimed violation of the

said rule besides disputing the identity of Daljeet Singh and

validity of his driving licence. The contention of the counsel for

the applicant is that the findings of the consumer court are

binding on the parties and the same could not be re-agitated

based on the principle of constructive res judicata as envisaged

under Explanation 4 of Section 11 CPC. Counsel for the applicant

placed reliance on the judgment of the Apex Court in Sulochana

Amma Vs. Narayanan Nair, AIR 1994 SC 152. Counsel also

submitted that the driving licence of Mr. Daljeet Singh was duly

placed on record before the MACT, but ignoring the said driving

licence the learned MACT gave a wrong finding by holding that

the driving licence was not placed on record by the applicant and

accepting the same view, this court in appeal also returned a

wrong finding. Counsel thus submitted that there is an error

apparent on the face of the record as the order of the Consumer

Court as well as the filing of the driving licence before the MACT

were ignored by this court at the time of deciding the appeal in

question.

6. On the other hand, counsel for the respondent refuted

the submissions of the counsel for the applicant and submitted

that by taking up all the aforesaid pleas the applicant seeks to re-

agitate the issue on merits and such a course would be beyond

the scope and ambit of review as envisaged under Order 47 Rule

(1) CPC. Counsel further submitted that decision of the Consumer

Court cannot be held to be binding on the MACT as before the

Consumer Court, no proper adjudication to determine the rights of

the parties takes place, while before the Tribunal the decision is

given based on the in-depth examination of pleadings and

documents of the parties. Counsel thus submitted that the

decision of the Consumer Court cannot be held to be binding

under Explanation 8 of Section 11 CPC.

7. I have heard learned counsel for the parties at

considerable length.

8. It is a settled legal position that the power to review

under Order 47 Rule 1 can be exercised only when the applicant

is able to satisfy the conditions strictly covered by the said

statutory provision. The power to review is thus an exception to

the general rule and has to be exercised with great care and

circumspection as exercise of such power would lead to

modification, alteration or reversal of the original order. It is also a

settled legal position that no party seeking review can be allowed

to re-open or re-agitate the issues to re-appreciate the factual

and legal pleas of the parties.

9. An application for review can be maintained only when

the case of the appellant falls within the scope and ambit of the

said provision and one of the main postulate being that the order

suffers from an error apparent on the face of the record. A plea

which was not taken by the party at the hearing of the case would

not be allowed to be taken in review. In this regard in Inderchand

Jain (D) through L.Rs. Vs. Motilal (D) through L.Rs. -

MANU/SC/1297/2009, the Apex Court observed as under:

"An application for review would lie inter alia when the order suffers from an error apparent on the face of the record and permitting the same to continue would lead to failure of justice. In Rajendra Kumar v. Rambai MANU/SC/0542/2002, this Court held:

The limitations on exercise of the power of review are well settled. The first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and permitting the order to stand will lead to failure of justice. In the absence of any such error, finality attached to the judgment/order cannot be disturbed.

The power of review can also be exercised by the court in the event discovery of new and important matter or evidence takes place which despite exercise of due diligence was not within the knowledge of the applicant or could not be produced by him at the time when the order was made. An application for review would also lie if the order has been passed on account of some mistake. Furthermore, an application for review shall also lie for any other sufficient reason.

10. It is beyond any doubt or dispute that the review court does not sit in appeal over its own order. A re- hearing of the matter is impermissible in law. It constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. It is also trite that exercise of inherent jurisdiction is not invoked for reviewing any order.

Review is not appeal in disguise.

In Lily Thomas v. Union of India AIR 2000 SC 1650, this Court held:

56. It follows, therefore, that the power of review can be exercised for correction of a mistake and not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated an appeal in disguise."

10. The learned Tribunal has given a categorical finding

that RW-2, Shri Daljeet Singh failed to place on record copy of his

driving licence, it would be appropriate to reproduce the following

para taken from the judgment of the MACT:-

"For the sake of argument, I may take the next requirement of the sub-rule (b), requiring the instructor to hold an effective driving licence to drive the vehicle. In this regard RW2 Sh. Daljit Singh in his examination-in-chief has deposed that he had a valid driving licence when he was teaching Sh. Jeet Singh to drive the vehicle but no copy of the said driving licence was produced on record which results into the only conclusion that he was having no effective driving licence with him at the relevant time."

11. If this finding of the learned MACT was erroneous

being contrary to the records then the remedy to seek review of

the said order was available with the applicant before the MACT

Court and not before this Court. Even otherwise, nowhere the

applicant has taken a stand that the said driving licence of Mr.

Daljeet Singh was proved on record. With regard to the decision of

the Consumer Court, as per the applicant compliance of sub-Rule 3

(b) was duly established. It would be relevant to refer to the

following para taken from the order of the MACT:-

"The deposition of RW2, Sh. Daljit Singh that he filed an affidavit Ex. RW2/A before a consumer court wherein the F1 was claiming damages for the damage caused to the said car in the said accident does not come to the help of either RW3 or the R1 because the bare perusal of the affidavit Ex. RW1/A establishes that it was not signed by anyone and as per date of verification it was prepared on 15.2.2002 and there is no date mentioned on the same as to when the said affidavit was filed before the said consumer court. Even the date i.e., 15.2.2002, even if the facts narrated in the affidavit are taken to be true for the sake of argument, it remains an afterthought. Hence, I hold that RW2, Sh. Daljit Singh was not present in the car at the time of the accident which is also not proved by any of the documents of the record of the criminal case, the certified copies of which are Ex.P1 to Ex.P23."

12. Accepting the findings of the learned Tribunal, this

court also came to the conclusion that the applicant failed to

prove presence of Mr. Daljeet Singh in the car at the time of the

accident, and also the fact of competence of Mr. Daljeet Singh to

impart training to the applicant in his capacity as an instructor in

violation of Rule 3 (b) of the Central Motor Vehicles Rules and also

even the failure of the applicant to prove driving licence of Daljeet

Singh on record. It is in this background, this court in the said

order dated 28.3.2008 passed in appeal observed as under:

"I find myself in agreement with the observations of the Tribunal that the driver although may be perfect in driving a vehicles but still he cannot be considered to be an expert in imparting instructions for making the other persons learn how to drive the vehicle."

13. In the backdrop of the aforesaid facts it is quite evident

that the applicant seeks to re-argue the appeal in the garb of

review application and under no circumstance the applicant can

be permitted to adopt such a course. The applicant has failed to

point out that the order suffers from an error apparent on the face

of the record nor there is discovery of any new matter or evidence

which was not within the knowledge of the applicant despite

exercise of due diligence on his part. There is concurrent finding

of fact by the MACT as well as by this court on same issues, which

are now again being raised by the applicant in the present

application, and therefore, the same cannot be gone into while

exercising the power of review as per the imperatives envisaged

under the said provision of law. The judgments relied upon by the

counsel for the applicant are not applicable in the facts of the

present case and therefore, the applicant cannot find any support

therefrom.

14. There is no merit in the present application.

15. Dismissed.

August 11,2009                    KAILASH GAMBHIR,J
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