MACApp./90/2009
2025 Latest Caselaw 344 Gua

Gauhati High Court

MACApp./90/2009 on 8 May, 2025

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GAHC010123752018




                                                                2025:GAU-AS:5673



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

                                   REVIEW PETITION NO. 76/2018
                              1.   Smti. Swapna Jyoti Gohain
                                   W/O Late Dibakar Gohain,
                                   R/O Romai Kardaibam Gaon,
                                   P.O. Lahowal, P.S. Chabua,
                                   District-Dibrugarh, Assam

                              2.   Ashim Kumar Gohain
                                   S/O Late Dibakar Gohain
                                   R/O Romal Kardaibam Gaon
                                   P.O. Lahowal P.S. Chabua
                                   District-Dibrugarh Assam

                              3.   Protim Kumar Gohain
                                   S/O Late Dibakar Gohain
                                   R/O Romal Kardaibam Gaon
                                   P.O. Lahowal P.S. Chabua
                                   District-Dibrugarh Assam
                                   Respondent No. 2 and 3 being minor are
                                   represented by their mother

                                                                 .....Petitioners
                                          -Versus-


Review Petition No. 76/2018                                                 Page 1
                                                                          Page 2 of 11



                              1.    Oriental Insurance Co. Ltd.
                                    Having its registered office at Oriental House
                                    A-25/27, Asaf Ali Road, New Delhi and
                                    Regional Divisional Office at several places
                                    including a Regional Office at Guwahati-7

                              2.    Sri Mihir Kanti Kar
                                    S/O Bivishan Kar
                                    R/O Barpathar Mission Para S. Dohatia Road
                                    P.O. Tinsukia District-Tinsukia
                                    Owner of the bike No. AS-23/C 798

                                                                 ......Respondents


     For Petitioners          :     Mr. G. N. Sahewala, Sr. Advocate
                                    Ms. G. Duggal, Advocate
     For Respondents          :     Mr. S. Dutta, Sr. Advocate
                                    Mr. S. Dutta, Advocate
                                    Mr. R. C. Paul, Advocate

     Date of Judgment :             08.05.2025

                         BEFORE
        HON'BLE MR. JUSTICE MRIDUL KUMAR KALITA

                                   JUDGMENT

(MRIDUL KUMAR KALITA, J)

1. Heard Mr. G. N. Sahewala, the learned senior counsel, assisted by Ms. G. Duggal, the learned counsel for the review petitioners. Also heard Mr. S. Dutta, the learned senior counsel, assisted by

Review Petition No. 76/2018 Page 2

Mr. S. Dutta, the learned counsel for respondent No. 1, as well as Mr. R. C. Paul, the learned counsel for respondent No.2.

2. This application for review of the order dated 23.04.2014 passed by this Court in MAC Appeal No.90/2009 has been filed by the Review Petitioners/Claimants.

3. This Review Petition is mainly filed on the ground that the order dated 23.04.2014 passed by this Court in MAC Appeal No. 90/2009 is manifest with error apparent on the face of record in as much as it had wrongly applied the precedent in the case of New India Assurance Company Ltd. Vs. Sadanand Mukhi reported in (2009) 2 SCC 417 in the instant case as the facts and circumstances of this case do not justify application of the said precedent in the instant case.

4. The review petitioners/claimants had filed MAC Case No. 74/2005 before the Court of learned Additional District Judge (FTC), Dibrugarh-cum-Member Motor Accident Claims Tribunal claiming compensation for the death of their husband/father in a motor vehicle accident which took place on 14.01.2005. The husband/father of the review petitioners, namely, late Dibakar Gohain was driving a motorcycle and coming from Chabua Jeraigaon towards Tinsukia A.T. Road when due to mechanical defect in the motorcycle an accident occurred and the late Dibakar Gohain sustained injuries in the accident and he was brought to Aditya Nursing Home.

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5. On 25.01.2005, the late Dibakar Gohain succumbed to his injuries in the nursing home and on his death the review petitioners filed the claim case under Section 166 of the Motor Vehicle Act, 1988. Claiming compensation for the death of their husband/father in the claim case the claimants/review petitioners adduced evidence of three witnesses and exhibited 11 documents whereas the opposite party had adduced evidence of one DW and exhibited no document.

6. Ultimately, by judgment and award dated 15.11.2008, the claim petition was allowed and the Insurance Company/the opposite party No.1 was directed to pay a compensation amount of Rs.13,33,710/- to the claimants/review petitioners within a month of the date of the award along with an interest and the rate of 5% from the date of filing of the petition, till realization of the said amount.

7. Being aggrieved with the judgment and award passed by the Motor Accident Claims Tribunal, Dibrugarh, the Insurance Company filed a MAC Appeal under Section 173 of the Motor Vehicle Act, 1988, which was registered as MAC Appeal No. 90/2009, wherein the main plea taken by the appellant Insurance Company was that the deceased being the driver of the offending vehicle and being a representative of the owner cannot be regarded as a third party in the instant case.

8. It was pleaded by the appellant in their memo of appeal that the policy in question covered the bodily injuries and death caused to the third party only whereas the deceased being the representative of the owner cannot be regarded as third party and, therefore, was not covered under the policy of insurance. It was also pleaded by

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the appellant that the accident took place due to the fault of the driver himself and, therefore, the Insurance Company is not liable to indemnify the owner.

9. By the impugned order dated 23.04.2014, the appeal was allowed in view of the decision of the Apex Court in the case of New India Assurance Company Ltd. Vs. Sadanand Mukhi, (Supra), wherein it was held that when the rider himself commits the accident there is no liability on the part of the insurer to pay the compensation and accordingly the appeal was allowed.

10. For the sake of convenience, the order under review is quoted here in below.

"DATE OF ORDER: 23/04/2014 The deceased was a rider of a motor cycle. It is said that the motorcycle met with an accident and the rider died and the dependents of the rider filed a claim petition against the owner and the insurer. The Tribunal has awarded compensation and directed the insurer to pay the compensation with interest @ 5% from the date of filing of the petition till the realisation of the whole amount. The insurer is in appeal. It is the contention of the respondents-claimants that because of the mechanical defect, the accident occurred, therefore, the insurer is not liable.

In view of the decision of the Supreme Court in New India Assurance Company Limited vs. Sadanand Mukhi and others, reported in (2009) 2 SCC 417, when the rider himself commits the accident, there is no liability on the part of the insurer to pay compensation, accordingly, the appeal is allowed.

The amount in deposit shall be refunded to the appellant.

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The connected miscellaneous shall accordingly stand disposed of.

11. Mr. G. N. Sahewala, the learned senior counsel for the review petitioner has submitted that this Court has committed error that the order under review is manifest with error apparent on the record as much as the facts and circumstances of the present case are clearly distinguishable. He submits that the ratio in the case of New India Assurance Company Ltd. Vs. Sadanand Mukhi, (Supra) was regarding the question as to whether the son of the owner, who died in an accident, while driving the vehicle can be regarded as third party or not. It is further submitted that the question that "when the rider himself commits the accident, there is no liability on the part of insurer to pay" was not the ratio of the said case.

12. The learned senior counsel for the review petitioner has also submitted that in the instant case, the deceased was not related to the owner and the accident occurred due to mechanical failure as observed by the Motor Accident Claims Tribunal in its judgment and, therefore, the precedent on the basis of which the appeal was allowed is not applicable in this case.

13. Mr. G. N. Sahewala, the learned senior counsel for the review petitioner has submitted that when the accident occurred due to reasons other than the negligence of the driver as in this case, the Insurance Company cannot repudiate the claim made by the owner of the vehicle which was duly insured. The learned senior counsel for the petitioner has submitted that in the case of "Jitendra Kumar

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Vs. Oriental Insurance Company Limited and Another"

reported in (2003) 6 SCC 420, the Apex Court has laid down the law that the Insurance Company cannot repudiate the claim of the insured only because the damage was caused due to mechanical failure and not due to the fault of the driver.

14. He submits that in the instant case also, there is clear evidence on record as well as observation of the Motor Accident Claims Tribunal that the accident occurred due to mechanical failure and there is no material to show that the deceased driver was negligent or it was for his fault the accident occurred. The learned senior counsel for the review petitioner, therefore, submits that the impugned order, which is apparently wrong as the same was passed on applying wrong precedent is required to be reviewed and the appeal filed by the Insurance Company is liable to be dismissed.

15. On the other hand, Mr. S. Dutta, the learned senior counsel for the Insurance Company/opposite party has submitted that in exercise of review jurisdiction, this Court has certain inherent limitations and unless there is glaring omission or patent mistake apparent in the judgment under the review, the review jurisdiction may not be exercised. He submits that reviews to be distinguished from appeal as in review, the re-hearing of case on merit is not warranted.

16. He submits that if the judgment under review is erroneous and it requires appreciation of evidence, the proper remedy available to the petitioners is moving an appropriate application before the higher court like filing of SLP before the Supreme Court and not

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pursuing the remedy under Section under Order 47 Rule 1 of Code of Civil Procedure, 1908. In support of his submission, the learned senior counsel for the Insurance Company relied on the ruling of the Apex Court in the case of "Northern India Caterers (India) Ltd. Vs. Lt. Governor of Delhi" reported in (1980) 2 SCC 167. The learned senior counsel for the Insurance Company has submitted that in the said ruling the Apex Court has observed that a plea for review, unless the first judicial view is manifestly distorted, is like asking for moon.

17. He also submits that in the instant case the petitioner in the disguise of filing the review petition has tried to convert the same into an appeal and raise the questions which cannot be addressed without going into the evidence and considering the case again on merit, which according to the learned senior counsel for the Insurance Company is not permissible while exercising review jurisdiction. In support of his submission, he has cited a ruling of this Court ruling of a Division Bench of this Court in the case of "Dharitri Barman Vs. Gauhati High Court and Another" reported in 2016 1 GLR

729.

18. He also submits that when the driver himself is negligent and accident has been caused due to his negligence he cannot be compensated for such an accident and the Insurance Company cannot be made to indemnify the owner under such circumstances. In support of his submission, he has cited the ruling in the case of

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"Khenyei Vs. New India Assurance Company Ltd. and Other," reported in (2015) 9 SCC 273.

19. The learned senior counsel for the Insurance Company has submitted that though, an Appellate Court can re-appreciate the materials on record and come to a different finding from that of the subordinate court, no such power is vested with a Review Court. He submits that while a Review Court while re-examining its own order can only correct any glaring mistake or error apparent on the face of record to prevent miscarriage of justice without going deeper by re- appreciating the evidence again. Hence, he submits that this Review Petition is liable to be dismissed.

20. I have considered the submissions made by both sides and have perused the materials on record including the case diary of MAC Appeal No. 90/2009. I have also gone through the rulings relied upon by the learned counsel for both the sides in support of their submissions.

21. This instant review application was filed after a delay of 75 days beyond the prescribed period of limitation. However, the said delay was condoned in MC Case No. 659/2015 and, thereafter, the instant Review Petition No. 76/2018 was registered.

22. On perusal of the order under review dated 23.04.2014 by which the appeal filed by the Insurance Company was allowed, it appears that the same is a very short order and the appeal was mainly allowed on the ground that in view of the decision of the Apex Court in the case of New India Assurance Company Ltd. Vs. Sadanand Mukhi,

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(Supra), when the rider himself commits an accident, there is no liability on the part of the insurer to pay compensation.

23. Though, the ratio of the aforesaid judgement does not appear to be exactly as what has been stated in the judgement under review, however, it certainly lays down the law that in an act only policy, the liability of the insurer to cover the additional risk would be there only if there is such a stipulation in the policy and additional premium to that effect has been paid. The Insurance Company does not have the liability to indemnify the owner or any person who steps into the shoes of the owner, unless there is a stipulation to that effect in the policy and an additional premium has been paid in that regard.

24. In the instant case, though, the accident seems to have occurred due to mechanical defect, there is nothing on record to show that the insurance policy in this case was a comprehensive policy, which covers the risk of owner and the driver. The deceased who was driving the motorcycle had stepped into the shoes of the owner and therefore, unless there is a stipulation in the policy to cover the risk of the owner, he cannot be indemnified by the Insurance Company.

25. Moreover, the judgment of the Apex Court, which is cited by the learned counsel for the review petitioner, i.e., the case of the Jitendra Kumar -Vs- Oriental Insurance Company Limited and Another (Supra), does not appear to be applicable in this case in as much as in the said judgment the claim was made by the owner/claimant for damage of his motor vehicle which got burnt due to fire which broke out due to the mechanical defect. The ratio of

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the said judgment is that if the vehicle was duly insured with the Insurance Company, then it cannot repudiate the claim for compensation made by the owner solely on the ground that the driver of the vehicle was not having a valid license, whereas, the facts of the present case are clearly distinguishable from the facts of the case cited by the learned counsel for the review petitioner.

26. Thus, for the reasons discussed herein above, this Court is of considered opinion that though, the order under review is a short order and it does not discuss the judgement relied upon by it in much details, however, the ratio of the said judgement is applicable to the facts of the instant case and there is no glaring or patent error apparent on the face of the impugned order justifying the exercise of review jurisdiction in this case.

27. In view of above discussion, this Review Petition is dismissed.

                                                        JUDGE


       Comparing Assistant




Review Petition No. 76/2018                                               Page 11