The United India Insurance Co. Ltd vs Smti Purnima Roy And 2 Ors
2021 Latest Caselaw 1981 Gua

                                                                  Page No.# 1/7

GAHC010081762018




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : Review.Pet./52/2018

            THE UNITED INDIA INSURANCE CO. LTD.
            SUBSIDIARY OF GENERAL INSURANCE CORPORATION OF INDIA,
            REGISTERED HEAD OFFICE AT 24 WHITES ROAD, MADRAS 600014
            REPRESENTED BY THE ADMINISTRATIVE OFFICER, GAUHATI REGIONAL
            OFFICE, BHANGAGARH, GUWAHATI 781005



            VERSUS

            SMTI PURNIMA ROY AND 2 ORS,
            W/O SRI MAHINI MOHAN ROY, VILL. MOKRAPARA, P.O. K/BHOTGAON,
            P.S.AND DIST. KOKRAJHAR, BTC, ASSAM.

            2:SRI MAHINI MOHAN ROY
             S/O LT. RAJBIHARI ROY
            VILL. KOKRAPARA
             P.O. -K/BHOTGAON
             P.S. AND DIST. KOKRAJHAR
             BTC
            ASSAM.

            3:SRI SIB PRASAD GHOSE

             S/O SRI BISWANATH GHOSE
             R/O KOKRAJHAR
             SUBHASH PALLY
             WARD NO. 3
             P.O.
             P.S. AND DIST. KOKRAJHAR
             BTC (ASSAM

Advocate for the Petitioner   : MS. R D MOZUMDAR
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Advocate for the Respondent :




                                   BEFORE
                  HONOURABLE MR. JUSTICE MANISH CHOUDHURY

                                           ORDER

26.08.2021

The Court proceedings have been conducted through online court proceeding services.

2. Heard Ms. R.D. Mozumdar, learned counsel for the review petitioner and Mr. J. Sarmah, learned counsel for the respondent nos. 1 and 2.

3. This review petition has been filed under Order XLVII Rule 1(a) read with Section 114 and Section 151, Code of Civil Procedure (CPC), 1908 seeking review of that part of a common judgment and order dated 25.08.2017 passed by this Court, whereby, the appeal, MAC Appeal 98/2012, preferred by the review petitioner as appellant was dismissed. By the said common judgment and order dated 25.08.2017, the two appeals - MAC Appeal 98/2012 and MAC Appeal 92/2013 - were decided. While the appeal preferred by the review petitioner as appellant, MAC Appeal 98/2012 was dismissed, the other appeal preferred by the claimants, MAC Appeal 92/2013 for enhancement was allowed. Both the appeals were preferred against a judgment and award dated 03.12.2011 passed by the learned Member, Motor Accident Claims Tribunal, Kokrajhar ('the Tribunal', for short) in MAC Appeal 30/2011.

4. The claim application, MAC Case no. 30/2011 was preferred by the present respondent nos. 1 and 2 as claimants, who are the parents of one Budhadeb Roy under Section 166 of the Motor Vehicles Act, 1988 (the MV Act). The claimants stated that at around 05-30 a.m. on 17.07.2010, their son, Budhadeb Roy was proceeding in a vehicle bearing registration no. AS- 16/A-6777 (TATA Indigo, CS LX) ['the subject-vehicle', for short]. The subject-vehicle was driven by its owner Sri Sib Prasad Ghose. The subject-vehicle met with an accident and in the said accident, Budhadeb Roy sustained injuries. As a result of the injuries, Budhaded Roy was Page No.# 3/7

shifted to hospital and after a prolong treatment, he expired on 12.01.2011. Alleging that the accident took place due to rash and negligent driving on the part of the driver and owner of the subject-vehicle, the claim application was preferred seeking compensation. It was stated that the subject-vehicle was insured with the insurance company, United India Insurance Company Ltd i.e. the review petitioner. It was further stated that in connection with the accident, a case being Kokrajhar Police Station Case no. 13/2011 under Sections 279/338/304A, IPC was registered.

5. In the proceedings before the learned Tribunal, the owner and the driver i.e. the respondent no. 3 herein filed his written statement. The insurer also filed their written statement. The claimants' side examined 3 (three) witnesses. Neither the owner and driver of the subject-vehicle nor the insurer of the subject-vehicle i.e. the review petitioner adduced any evidence before the learned Tribunal. The insurer had, however, cross-examined the witnesses from the claimants' side. After appreciation of the evidence on record, the learned Tribunal allowed the claim application by the judgment and award dated 03.12.2010 by awarding an amount of Rs. 3,58,754/- as compensation along with interest and the insurer of the subject-vehicle was directed to deposit the same.

6. The insurer as the appellant had preferred the appeal, MAC Appeal 98/2012, assailing the judgment and award dated 03.12.2011 and on the other hand, the claimants as the appellants had preferred the other appeal, MAC Appeal 92/2013 seeking enhancement of the award of compensation.

7. In the appeal, MAC Appeal 98/2012, it was contended that the deceased was driving the subject-vehicle and therefore, no compensation was payable as the accident had occurred due to his own fault. It was further contended that the owner of the subject-vehicle had misrepresented and concealed the facts by initially informing the insurer in writing that at the time of the accident, the subject-vehicle was driven by the deceased and while filing the written statement in MAC Case no. 30/2011 he changed his stand by stating that he himself was driving the subject-vehicle at the time of the accident. The appellant had, thus, contended that the owner of the subject-vehicle had committed fraud. Urging that such fraud Page No.# 4/7

had vitiated the impugned judgment and award passed by the Tribunal, the appellant-insurer sought setting aside of the same.

8. The appellate court had dealt the issue in paragraph 6, 7 and 8 of the judgment and order dated 25.08.2017. The contents of paragraphs 6, 7 and 8 of the appellate court judgment are extracted hereinunder :

"6. Owner of the vehicle, the opposite party No.3 filed written statement before the tribunal, admitting that on the date of accident he was driving the vehicle and the deceased being his friend was travelling in the vehicle as occupant. Pw-1 and Pw-2 were not eye witness of the occurrence. However, the claimant has examined Pw-3, one Ashok Kr. Roy, who was an eye witness of the occurrence. Pw-3 stated that deceased Budhadeb Roy sustained injury in the accident on 17.07.2010 and immediately after the accident, he was shifted to Kokrajhar hospital. The medical evidence, as well as the post-mortem report, where, cause of death has been shown as septic shock, clearly indicated that the death of the deceased was because of the injury sustained in the motor vehicle accident. Indeed, the death of the victim because of the injury sustained in the motor vehicle accident involving the offending vehicle is not in dispute. The only question raised by the Insurance Company in the present case is that the owner of the vehicle committed fraud with the Insurance Company by taking two different stands.

7. Oral evidence adduced by the claimant side coupled with the documentary evidence, Exhibit-2, the Accident Information Report, and the FIR clearly demonstrates that the vehicle was driven by the owner Sib Prasad Ghosh at the relevant time. There was neither any pleading, nor any evidence was adduced by the Insurance Company to the effect, that deceased was driving the vehicle at the relevant time. Two documents being the alleged letter written by the owner of the vehicle after the accident and the GD entry annexed with the memo of appeal, on which the learned counsel for the Insurance Company heavily relied, shows that the said letter was received by the Insurance Company even before filing of the written statement by Insurance Company. Although, admittedly, the letter allegedly written by the owner and the GD entry were with the Insurance Company during the Page No.# 5/7

proceeding before the Tribunal, the Insurance Company is not found to have made any whisper during the entire proceeding before the tribunal about the existence of these two documents. When the owner of the vehicle himself appearing in the proceeding admitted that he was driving the vehicle and such plea was never challenged by the Insurance Company during the proceeding before the tribunal, the Insurance Company is not entitled to raise such plea in appeal.

8. In the above facts and circumstances, I do not find any force in the submission of the learned counsel for the Insurance Company, that the claimant will not be entitled to compensation for, alleged fraud committed by the owner of the vehicle with the insurer, which was never pleaded of proved before the tribunal. Even if it is assumed for arguments sake, that the owner of the vehicle committed some fraud with the Insurance Company, that would not anyway affect the right of the claimant to get compensation, when death of the deceased in the accident involving the offending vehicle is not disputed. In the above facts and circumstances, the appeal filed by the Insurance Company is found without merit and stands dismissed."

9. The ground that is sought to be urged in this review petition is that the owner of the subject-vehicle had committed fraud was not dealt by the appellate court in the proper perspective. No judgment of a Court can be allowed to sustain if it had been obtained by fraud and the review petitioner was not granted the proper relief in the appeal.

10. It is noticed that the appellate court had already observed that there was neither any pleading nor any evidence was adduced by the appellant-insurer during the proceeding before the learned Tribunal to the effect that the deceased was driving the subject-vehicle at the relevant time. The appellate court had also discussed about the two documents on which the appellant-insurer relied in the appeal. The appellate court had found that the two documents were available with the appellant-insurer prior to initiation of and also during the proceedings before the learned Tribunal but it did not made any whisper during the entire proceeding before the learned Tribunal about the existence of the said two documents. The learned appellate court had observed that when the owner of the subject-vehicle himself by appearing in the proceeding before the learned Tribunal admitted that he was driving the subject-vehicle at the time of the accident and when such plea was never challenged by the Page No.# 6/7

insurer of the subject-vehicle during the proceedings before the learned Tribunal, the appellant-insurer was not entitled to raise such plea in the appeal. Finding no force in the submission of the appellant-insurer that the claimants would not be entitled for compensation due to alleged fraud committed by the owner of the subject-vehicle with the appellant-insurer and the fact that such issue was never pleaded before the learned Tribunal, the appeal was dismissed. It was observed by the appellate court that even if it was assumed for the argument sake that the owner of the subject-vehicle committed some fraud with the appellant-insurer that would not affect the right of the claimants to get compensation when the death of the deceased in the accident involved with the subject-vehicle was not disputed.

11. It is well settled that the power to review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power of review. A review cannot be treated like an appeal in disguise. It is not the case of the review petitioner herein that they had discovered a new and important evidence which after the exercise of due diligence was not within their knowledge or could not be brought to the notice of the learned Tribunal during the course of the proceedings in MAC Case no. 30/2011. The two documents on which the review petitioner had relied upon, were available with them during the course of the proceedings before the learned Tribunal. No such plea was taken in the written statement. No evidence was led by the insurer of the subject-vehicle before the learned Tribunal. When the plea of alleged fraud was raised in the appeal, the appellate court had discussed the said issue thoroughly, as have been extracted above.

12. In a review petition, it is not open for the Court to review the evidence and reach a different conclusion, even if that is possible. In Kamalesh Verma vs. Mayawati reported in (2013) 8 SCC 320, the Hon'ble Supreme Court of India has held that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII Rule 1 of the Code of Civil Procedure. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge such judgment of the appellate court under the review jurisdiction in the guise that an alternative view is Page No.# 7/7

possible.

13. In the light of the discussions made above and having regard to the power and ambit of review jurisdiction, this revision petition is found devoid of any merit and accordingly, the same is dismissed. No cost.

JUDGE

Comparing Assistant