The National Insurance Co. Ltd vs Kikabhai Varsingbhai Machhar
2021 Latest Caselaw 18554 Guj

     C/SCA/11877/2019                               ORDER DATED: 20/12/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 11877 of 2019

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                        THE NATIONAL INSURANCE CO. LTD
                                     Versus
                         KIKABHAI VARSINGBHAI MACHHAR
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Appearance:
MS LILU K BHAYA(1705) for the Petitioner(s) No. 1
MR.HIREN M MODI(3732) for the Respondent(s) No. 1,2
SERVED BY RPAD (N)(6) for the Respondent(s) No. 3,4
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 CORAM:HONOURABLE MR. JUSTICE HEMANT M.
       PRACHCHHAK

                                Date : 20/12/2021

                                 ORAL ORDER

1. The present petition is filed by the Insurance Company challenging the impugned order passed by the Motor Accident Claims Tribunal (Main), Dahod dated 26.02.2019 below Exh. 33 in M.A.C.R.P. No. 02 of 2018 in MACP No. 764 of 2008, whereby the review application preferred by the original claimants is allowed.

2. The present petition is filed with the following prayers:

(A) To issue a writ or mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the judgment and order dated 26.02.2019 passed by the Motor Accident Claims Tribunal (Main), Dahod in MACRP No. 02 of 2018 in MACP No. 764 of 2008 for the reasons stated in the memo of petition and in the interest of justice.

(B) Pending admission, hearing and final disposal of the above Special Civil Application to stay the execution, implementation and operation of the judgment and order dated 26.02.2019 passed by the Motor Accident Claims Tribunal (Main), Dahod in MACRP No. 02 of

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2018 in MACP No. 764 of 2008 and execution, implementation and operation of the judgment and award dated 15.09.2018 passed by the Motor Accident Claims Tribunal (Main), Dahod in MACP No. 764 of 2008 for the reasons stated in the memo of petition and in the interest of justice.

(C) To grant ad-interim reliefs in terms of Para-10(B) herein."

3. Ms. Lilu K. Bhaya, learned advocate for the petitioner has submitted that the Tribunal has failed to appreciate the provisions of the Code of Civil Procedure whereunder review is permissible only under certain circumstances, viz. When there is error apparent on the face of the record, fraud has been committed, there is gross irregularity or material irregularity then only review is permissible. It is submitted that the Tribunal has failed to appreciate the the Tribunal has no power to review its own order. Learned advocate for the petitioner has relied on the decision of the Hon'ble Apex Court in the case of Kamlesh Verma Vs. Mayawati and other decided in Review Petition (CRL.) No. 453 of 2012 in Writ Petition (CRL.) No. 135 of 2008, more particularly in Para Nos. 10,11, 14 & 16, which reads as under:

10) Review of the earlier order cannot be done unless the court is satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. This Court, in Col. Avtar Singh Sekhon vs. Union of India & Ors. 1980 (Supp) SCC 562, held as under:

"12. A review is not a routine procedure. Here we resolved to hear Shri Kapil at length to remove any feeling that the party has been hurt without being heard. But we cannot review our earlier order unless satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. In Sow Chandra Kante v. Sheikh Habib this Court observed :

"A review of a judgment is a serious step and reluctant

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resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.... The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality."

11) An error which is not self-evident and has to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review. A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected, but lies only for patent error. This Court, in Parsion Devi & Ors. vs. Sumitri Devi & Ors., (1997) 8 SCC 715, held as under:

"7. It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. In Thungabhadra Industries Ltd. v. Govt. of A.P. this Court opined:

"What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an 'error apparent on the face of the record'). The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an 'error apparent on the face of the record', for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by 'error apparent'. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error."(emphasis ours)

8. Again, in Meera Bhanja v. Nirmala Kumari Choudhury while quoting with approval a passage from Aribam Tuleshwar Sharma v. Aribam Pishak Sharma this Court once again held that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC.

9. Under Order 47 Rule 1 CPC a judgment may be

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open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise".

14) Review is not re-hearing of an original matter. The power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. A repetition of old and overruled argument is not enough to re-open concluded adjudications. This Court, in Jain Studios Ltd. vs. Shin Satellite Public Co. Ltd., (2006) 5 SCC 501, held as under: "

11. So far as the grievance of the applicant on merits is concerned, the learned counsel for the opponent is right in submitting that virtually the applicant seeks the same relief which had been sought at the time of arguing the main matter and had been negatived. Once such a prayer had been refused, no review petition would lie which would convert rehearing of the original matter. It is settled law that the power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. It is not rehearing of an original matter. A repetition of old and overruled argument is not enough to reopen concluded adjudications. The power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases.

12. When a prayer to appoint an arbitrator by the applicant herein had been made at the time when the arbitration petition was heard and was rejected, the same relief cannot be sought by an indirect method by filing a review petition. Such petition, in my opinion, is in the nature of "second innings" which is impermissible and unwarranted and cannot be granted."

16) Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:

 C/SCA/11877/2019                                   ORDER DATED: 20/12/2021




  (A)     When the review will be maintainable:-

  (i)    Discovery of new and important matter or evidence which, after

the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;

(ii) Mistake or error apparent on the face of the record;

(iii) Any other sufficient reason.

The words "any other sufficient reason" has been interpreted in Chhajju Ram vs. Neki, AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos vs. Most Rev. Mar Poulose Athanasius & Ors., (1955) 1 SCR 520, to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India vs. Sandur Manganese & Iron Ores Ltd. & Ors., JT 2013 (8) SC 275.

(B) When the review will not be maintainable:-

(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.

(ii) Minor mistakes of inconsequential import.

(iii) Review proceedings cannot be equated with the original hearing of the case.

(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.

(v) A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected but lies only for patent error.

(vi) The mere possibility of two views on the subject cannot be a ground for review.

(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.

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(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.

(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived."

4. Mr. Hiren Modi, learned advocate for the respondent - original claimants has relied on the judgment of the Calcutta High Court in the case of Rina Mukherjee and another Vs. New India Assurance Company Ltd. reported in 2008 ACJ 1248, more particularly in Para-11, which reads under:

"11. There is no dispute that review is a creature of statute like the provision of appeal and in order to exercise such power, the court should see that such power is conferred by law either specifically or by necessary implication. [See Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji AIR 1970 SC 1273] . However, a court or Tribunal has an inherent jurisdiction of review its orders if such review is a procedural one, namely, the one that is necessitated for the correction of the mistake or fault on the part of the Tribunal resulting in prejudice to a litigant. As pointed out by the Supreme Court in the case of Grindlays Bank Ltd. v. Central Government Industrial Tribunal AIR 1981 SC 606 , by explaining the case of Patel Narshi Thakershi (supra), that although no review lies on merit unless the statute specifically provides for it, nevertheless, when a review is sought for on the ground of procedural defect, the inadvertent error committed by Tribunal should be corrected ex debito justitiae to prevent the abuse of its process and such power inheres in every court and Tribunal. We may at this stage point out at least two of the instances of the defect in the order authorising procedural review as distinguished from a regular review on merit. First, if a court wrongly disposes of litigation on a date not fixed for hearing thereby depriving a party of his right to make submission resulting in the denial of opportunity of hearing. Secondly, if the court disposes of a matter ex parte under the impression that in spite of service of summons, one of the parties is not contesting the proceedings and ultimately, after the disposal of the matter, attention of the court is drawn to the fact that no summons was at all issued from the office of the court. [See Subodh Chandra v. Sudhir Kumar, AIR 1950 Cal. 209] ."

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He has also relied another judgment of the Hon'ble Apex Court in the case of Shivaraj Vs. Rajdenra and another reported in 2018 ACJ 2755, more particularly in Paras No. 7 & 9, which reads as under:

"7. On that finding, the High Court concluded that the appellant travelled in the tractor in breach of policy terms and conditions and therefore, the Insurance Company cannot be made liable to compensate the owner or the claimant. Accordingly, the appeal preferred by the respondent No.2 was allowed by the High Court and the insurer came to be absolved from the liability to pay compensation. While dealing with the appeal for enhancement of the compensation amount filed by the appellant, the High Court noted that the amount arrived at by the tribunal was just and proper and reckoned all the mandatory heads of compensation. As a result, it concluded that the appellant was not entitled for enhanced compensation.

9. The High Court, however, found in favour of respondent No.2 (insurer) that the appellant travelled in the tractor as a passenger which was in breach of the policy condition, for the tractor was insured for agriculture purposes and not for carrying goods. The evidence on record unambiguously pointed out that neither was any trailer insured nor was any trailer attached to the tractor. Thus, it would follow that the appellant travelled in the tractor as a passenger, even though the tractor could accommodate only one person namely the driver. As a result, the Insurance Company (respondent No.2) was not liable for the loss or injuries suffered by the appellant or to indemnify the owner of the tractor. That conclusion reached by the High Court, in our opinion, is unexceptionable in the fact situation of the present case."

Learned advocate of the petitioner has also relied on the judgment of this Court in the case of United India Insurance Com. Ltd. Vs. Vajabhai Ratabhai Dabhi since deceased through heirs decided on 03.12.2021 in First Appeal No. 3345 of 2011.

He has submitted that the Tribunal has not committed error any error in allowing the application of the original claimants.

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5. Having heard learned advocates for the respective parties, I am of the opinion that the impugned order passed by the Tribunal is erroneous and required to be interfered. Hence, the present petition is hereby allowed and the order passed by the Motor Accident Claims Tribunal (Main), Dahod dated 26.02.2019 below Exh. 33 in M.A.C.R.P. No. 02 of 2018 in MACP No. 764 of 2008 is hereby quashed and set aside. The matter is remanded back to the concerned Tribunal for its fresh decision. It is open for the parties to raise their contentions before the Tribunal. The Tribunal is also directed to decide the original claim petition being MACP No. 764 of 2008 in accordance with law after giving proper opportunity to the parties within a period of three months from the date of receipt of this order.

6. At the first instance the stay was granted by this Court, the Tribunal will decide the claim petition and thereafter order of depositing will be passed after hearing the parties.

(HEMANT M. PRACHCHHAK,J) SALIM/