Premjibhai Bhimjibhai Kerasia vs Ravji Jesang Kothivar
2024 Latest Caselaw 809 Guj

Gujarat High Court

Premjibhai Bhimjibhai Kerasia vs Ravji Jesang Kothivar on 31 January, 2024

Author: Gita Gopi

Bench: Gita Gopi

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       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                    R/FIRST APPEAL NO. 12 of 2022

                                With

           CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
                               In
                  R/FIRST APPEAL NO. 12 of 2022

                                With

CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 1 of 2022
                            In
               R/FIRST APPEAL NO. 12 of 2022
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                    PREMJIBHAI BHIMJIBHAI KERASIA
                                Versus
                       RAVJI JESANG KOTHIVAR
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1
for the Defendant(s) No. 1,2,3
MS KARUNA V RAHEVAR(3818) for the Defendant(s) No. 4
==================================================

 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                          Date : 31/01/2024

                            ORAL ORDER

1. The appellant challenges the judgment and award dated

9.3.2021 passed in Motor Accident Claim Petition No.370 of

2014 passed by the Motor Accident Claims Tribunal, Kachchh at

Bhuj as well as the order dated 25.10.2021 passed on Review

Application No.6 of 2021, wherein the Tribunal has rejected the

review application on the ground that original opponent Nos.1

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and 2 did not remain present when the case was called out

before the Tribunal.

2. Learned advocate Mr. Hiren M. Modi for the appellant

submits that the appellant is the owner of the vehicle being

Truck No. GJ-12-Z-2766 which was involved in the accident.

Learned advocate submits that the review petition was filed to

reconsider the order of pay and recover, wherein in the

impugned judgment in MACP No.370 of 2014 in paragraph 2 of

the operative order, the insurance company was given the

liberty to recover the amount from the appellant after following

due procedure according to law. Learned advocate submits that

the observation of the insurance company was on the premise

that no driving licence was produced by the driver on the

involved truck. Learned advocate submits that the Tribunal

could have called for the information under Form 54 of the

Central Motor Vehicles Rules, 1989 and could have procured the

copy of the licence. Learned advocate submits that opponent

No.4 insurance company had moved an application Exh. 44 on

4.1.2021 with a prayer for direction against opponent No.1

driver calling upon to produce licence. Learned advocate

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submits that on that application, the order was passed, inter

alia, directing that the driver and the owner of the vehicle being

Truck No. GJ-12-Z-2766 to produce the copies of the documents

mentioned in the preferred application. Learned advocate

submits that in spite of that order, no order for issuance of

notice was prayed by the insurance company and therefore,

though the order was passed below Exh. 44, it could not be

served. Hence, there was no compliance and immediately after

the order being passed on Exh. 44 on 22.1.2021, the insurance

company passed a closing purshis and thus, learned advocate

submits that though the licence was available with the driver, it

could not be produced. Learned advocate submits that on very

ground, the review petition was moved, but the Tribunal found

that below Exh. 44 learned advocate had put an endorsement of

'seen' and thus, the Tribunal referred that such an endorsement

would conclude that learned advocates were aware of the order

below Exh. 44 and after the order below Exh. 44, the final

award was passed on 9.3.2021, i.e. after almost one and half

months and thus concluding that the original opponent Nos.1

and 2 were put to the notice by order below Exh. 44 to produce

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valid and effecting driving licence, but opponent No.1 had failed

to do so.

3. Countering the arguments of learned advocate Mr. Modi,

learned advocate Ms. Karuna V. Rahevar for the insurance

company submits that the burden of failure of opponent Nos.1

and 2 of MACP No.370 of 2014 cannot be laid down on the

insurance company to consider any non-observance of the

procedure where actually the insurance company had called

upon opponent Nos.1 and 2 by way of moving Exh. 44 to

produce the original licence and when the advocates were on

record, there was no specific need for the issuance of notice to

the party concerned. Learned advocate Ms. Rahevar submits

that the review petition was rightly rejected and thus submits

that one opportunity has been granted and when opponent

Nos.1 and 2 failed to comply the order, that itself would be a

ground for rejection of the present appeal.

4. MACP No.370 of 2014 was decided on 9.3.2021

exonerating the insurance company with the direction to pay

and recover the said amount from opponent No.2, i.e. present

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appellant after following due procedure according to law. The

ground for exoneration is non-production of the valid and

effecting licence on record. The Tribunal had observed that

notice to opponent Nos.1 and 2 are duly served, had not

contested the matter and have not produced the driving licence

of the driver. Hence, it could not be decided as to whether

opponent No.1 was having driving licence to drive the vehicle.

5. After having considered the submissions raised by both

learned advocates on record and having considered the order

below review application as well as the judgment of the Tribunal

in MACP No.370 of 2014, it is required to be reminded to the

concerned Tribunal the provisions of sub-section (4) of Section

166 of the Motor Vehicles Act, 1988 ('M.V. Act' for short) where

the Tribunals are called upon to treat the report of accident

forwarded to it under Section 159 of the M.V. Act as an

application for compensation under the M.V. Act. Section 159 of

the M.V. Act mandates the police officer, during the

investigation, to prepare an accident information report to

facilitate the settlement of claim in such form and manner,

within three months, containing such particulars and submit the

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same to the Claims Tribunal or such other agency as may be

prescribed. Section 158 of the M.V. Act authorises a police

officer in uniform to ask for production of documents referred

therein from any person driving a vehicle in a public place.

Thus, the documents referred in Section 158 include driving

licence. The provision under sub-section (2) of Section 158

further clarifies that owing to the presence of a motor vehicle in

a public place, an accident occurs involving death or bodily

injury to another person, if the driver of the vehicle does not at

that time produce the required certificate, driving licence and

permit referred to in sub-section (1) to a police officer, he or the

owner shall produce the said certificates, licence and permit at

the police station at which the driver makes the report required

by Section 134.

6. Section 134 of the M.V. Act lays down the duty of driver in

case of accident and injury to a person. On demand by a police

officer of any information required by him, sub-clause (c)

clarifies that while giving information, driver is required to give

information in writing to the insurer, who has issued the

certificates of insurance, about the occurrence of the accident,

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namely - (i) insurance policy number and period of its validity;

(ii) date, time and place of accident; (iii) particulars of the

persons injured or killed in the accident; and (iv) name of the

driver and the particulars of his driving licence. It further

clarifies through explanation that driver includes the owner of

the vehicle. In view of these provisions, the driver and the

owner of the vehicle would be obliged to produce the copy of

the licence before the concerned Investigating Officer who deals

with the motor accident case and, under Section 166(4) of the

M.V. Act, such police officer has to forward a report to the

concerned Tribunal under Section 159 of the M.V. Act. Section

166(4) of the M.V. Act mandates the Claims Tribunal to treat

such report of accident forwarded to it as an application for

compensation under the M.V. Act.

7. In view of the above provisions, it would be necessary to

also reflect upon the provisions of Section 170 of the M.V. Act to

consider the provisions, that during the course of inquiry before

the Claims Tribunal and in case where it is found by the Claims

Tribunal and is satisfied that the person against whom the claim

is made has failed to contest the claim, then the Tribunal has to

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direct, that the insurer who may be liable in respect of such

claim, shall be impleaded as a party to the proceedings and the

insurer shall thereupon have, without prejudice to the

provisions contained in sub-section (2) of Section 150, the right

to contest the claim on all or any of the grounds that are

available to the person against whom the claim has been made.

8. It is also required to be specifically kept in mind the

provisions under Section 169 of the M.V. Act that in the above

procedure and powers of Claims Tribunal while summarily

conducting the procedure, the Claims Tribunal shall have all

the powers of a Civil Court for the purpose of taking evidence

on oath and of enforcing the attendance of witnesses and of

compelling the discovery and production of documents and

material objects and for such other purposes as may be

prescribed; and the Claims Tribunal shall be deemed to be a

Civil Court.

9. On the failure of the person to contest against whom the

claim is made would thereafter only give a right to the

insurance company to defend and contest the claim on all

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grounds that are available to the person against whom the claim

has been made. In view of this fact and the provisions to the

circumstances as has come before the Tribunal, non-presence of

opponent Nos.1 and 2 as driver and owner though

representative by advocate on record, would not be against the

provisions of law, the Tribunal was also required to be mindful

of the directions given by the Apex Court in the case of Jai

Prakash vs. National Insurance Company Limited and

others [(2010) 2 SCC 607], wherein the Apex Court had given

suggestions for legislative / executive intervention which are

given to draw the attention to several vexed issues which to

improve the system of compensating the motor accident victims

and such suggestions were with the intention, to properly and

expeditiously addressing the same, so as to ensure that all the

accident victims get compensation. The direction to the police

authorities and to the Claims Tribunal is reproduced hereunder:

"Directions to Police Authorities

16. The Director General of Police of each State is directed to instruct all Police Stations in his State to comply with the provisions of Section 158(6) of the Act. For this purpose, the following steps will have to be

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taken by the Station House Officers of the jurisdictional police stations:

(i) Accident Information Report in Form No. 54 of the Central Motor Vehicle Rules,1989 (`AIR' for short) shall be submitted by the police (Station House Officer) to the jurisdictional Motor Vehicle Claims Tribunal, within 30 days of the registration of the FIR. In addition to the particulars required to be furnished in Form No. 54, the police should also collect and furnish the following additional particulars in the AIR to the Tribunal: (i) The age of the victims at the time of accident;

(ii) The income of the victim;

(iii) The names and ages of the dependent family members.

(ii) The AIR shall be accompanied by the attested copies of the FIR, site sketch/mahazar/photographs of the place of occurrence, driving licence of the driver, insurance policy (and if necessary, fitness certificate) of the vehicle and postmortem report (in case of death) or the Injury/Wound certificate (in the case of injuries). The names/addresses of injured or dependant family members of the deceased should also be furnished to the Tribunal.

(iii) Simultaneously, copy of the AIR with annexures thereto shall be furnished to the concerned insurance company to enable the Insurer to process the claim.

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(iv) The police shall notify the first date of hearing fixed by the Tribunal to the victim (injured) or the family of the victim (in case of death) and the driver, owner and insurer. If so directed by the Tribunal, the police may secure their presence on the first date of hearing.

17. To avoid any administrative difficulties in immediate implementation of section 158(6) of the Act, we permit such implementation to be carried out in three stages. In the first stage, all police stations/claims Tribunals in the NCT Region and State Capital regions shall implement the provisions by end of April 2010. In the second stage, all the police stations/claims Tribunals in district headquarters regions shall implement the provisions by the end of August 2010. In the third stage, all police stations/Claims Tribunals shall implement the provisions by the end of December, 2010. The Director Generals shall ensure that necessary forms and infrastructural support is made available to give effect to Section 158(6) of the Act.

18. Section 196 of the Act provides that whoever drives a motor vehicle or causes or allows a motor vehicle to be driven in contravention of the provisions of Section 146 shall be punishable with imprisonment which may be extended to three months, or with fine which may extend to Rs. 1000/-, or with both. Though the statute requires prosecution of the driver and owner of uninsured vehicles, this is seldom done. Thereby a

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valuable deterrent is ignored. We therefore direct the Director Generals to issue instructions to prosecute drivers and owners of uninsured vehicles under Section 196 of the Act.

19. The Transport Department, Health Department and other concerned departments shall extend necessary co- operation to the Director-Generals to give effect to Section 158(6).

Directions to the Claims Tribunals

20. The Registrar General of each High Court is directed to instruct all Claims Tribunals in his State to register the reports of accidents receive under Section 158(6) of the Act as applications for compensation under Section 166(4) of the Act and deal with them without waiting for the filing of claim applications by the injured or by the family of the deceased. The Registrar General shall ensure that necessary Registers, forms and other support is extended to the Tribunal to give effect to Section 166(4) of the Act.

21. For complying with section 166(4) of the Act, the jurisdictional Motor Accident Claims Tribunals shall initiate the following steps:

(a) The Tribunal shall maintain an Institution Register for recording the AIRs which are received from the Station House Officers of the Police Stations and register them as miscellaneous petitions. If any private claim

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petitions are directly filed with reference to an AIR, they should also be recorded in the Register.

(b) The Tribunal shall list the AIRs as miscellaneous petitions. It shall fix a date for preliminary hearing so as to enable the police to notify such date to the victim (family of victim in the event of death) and the owner, driver and insurer of the vehicle involved in the accident.

Once the claimant/s appear, the miscellaneous application shall be converted to claim petition. Where a claimant/s file the claim petition even before the receipt of the AIR by the Tribunal, the AIR may be tagged to the claim petition.

(c) The Tribunal shall enquire and satisfy itself that the AIR relates to a real accident and is not the result of any collusion and fabrication of an accident (by any `Police Officer - Advocate - Doctor' nexus, which has come to light in several cases).

(d) The Tribunal shall by a summary enquiry ascertain the dependent family members/legal heirs. The jurisdictional police shall also enquire and submit the names of the dependent legal heirs.

(e) The Tribunal shall categories the claim cases registered, into those where the insurer disputes liability and those where the insurer does not dispute the liability.

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(f)     Wherever the insurer does not dispute the liability

under the policy, the Tribunal shall make an endeavour to determine the compensation amount by a summary enquiry or refer the matter to the Lok Adalat for settlement, so as to dispose of the claim petition itself, within a time frame not exceeding six months from the date of registration of the claim petition.

(g) The insurance companies shall be directed to deposit the admitted amount or the amount determined, with the claims tribunals within 30 days of determination. The Tribunals should ensure that the compensation amount is kept in Fixed deposit and disbursed as per the directions contained in General Managar, KSRTC v. Susamma Thomas [1994 (2) SCC 176].

(h) As the proceedings initiated in pursuance of Section 158(6) and 166(4) of the Act, are different in nature from an application by the victim/s under Section 166(1) of the Act, Section 170 will not apply. The insurers will therefore be entitled to assist the Tribunal (either independently or with the owners of the vehicles) to verify the correctness in regard to the accident, injuries, age, income and dependents of the deceased victim and in determining the quantum of compensation.

22. The aforesaid directions to the Tribunals are without prejudice to the discretion of each Tribunal to follow such summary procedure as it deems fit as

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provided under Section 169 of the Act. Many Tribunals instead of holding an inquiry into the claim by following suitable summary procedure, as mandated by Section 168 and 169 of the Act, tend to conduct motor accident cases like regular civil suits. This should be avoided. The Tribunal shall take an active role in deciding and expeditious disposal of the applications for compensation and make effective use of Section 165 of the Evidence Act, 1872, to determine the just compensation."

10. The appellant as an owner of the vehicle was made liable

to pay the compensation amount, as insurance company was

directed to pay the amount and recover from him. Hence,

aggrieved by the same, he had moved the Tribunal for reviewing

the order. Order XLVII Rule 1 of the Code of Civil Procedure,

1908 makes provisions for review in following terms:

"1. Application for review of judgment-- (1) Any person considering himself aggrieved--

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes,

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and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment of the Court which passed the decree or made the order.

      (2)     A party who is not appealing from a decree or
      order          may   apply   for    a        review      of     judgment

notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.

Explanation--The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment."

11. In light of the provisions of M.V. Act, opponent Nos.1 and 2

of MACP No.370 of 2014 had sufficient reason to move the

Tribunal to review the judgment and award as having not

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contested the petition and the motor accident claim petition

being defended by the insurance company. The law under the

M.V. Act mandates driver and owner of the vehicle to produce

the copy of the licence before the Investigating Officer and the

police officer is required to produce the copy along with the

report submitted by him to the Tribunal as laid down in the case

of Jay Prakash (supra). The Tribunal was required to call upon

the Investigating Officer under Form 54 of the Central Motor

Vehicles Rules, 1989 to produce the same. Non-production of

licence of the driver, by the driver or the owner, could not be

made a ground for exonerating the insurance company where in

fact law mandates them to produce before Investigating Officer.

12. In the case of Board of Control for Cricket, India and

another vs. Netaji Cricket Club and others [AIR 2005 SC

592], the scope of review application has been dealt with in

paragraphs 88 and 90. The relevant observations are referred

hereinbelow:

"Section 114 of the Code empowers a court to review its order if the conditions precedents laid down therein are satisfied. The substantive provision of law does not

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prescribe any limitation on the power of the court except those which are expressly provided in Section 114 of the Code in terms whereof it is empowered to make such order as it thinks fit. Order 47, Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason. Thus, a mistake on the part of the court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefor. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words 'sufficient reason' in Order 47, Rule 1 of the Code is wide enough to include a misconception of fact or law by a court or even an Advocate. An application for review may be necessitated by way of invoking the doctrine "actus curiae neminem gravabit".

13. In the referred judgment of Board of Control for Cricket,

India (supra), it is clarified that the word 'sufficient reason' in

Order XVII Rule 1 of CPC, is wide enough to include the

misconception of fact or law by court or even an advocate. In

Paragraph 92 of the said judgment, it has been observed as

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under:

"92. Yet again in Lily Thomas (supra), this Court has laid down the law in the following terms:

"52. The dictionary meaning of the word "review" is "the act of looking, offer something again with a view to correction or improvement". It cannot be denied that the review is the creation of a statute. This Court in Patel Narshi Thakershi v.

Pradyumansinghji Arjunsinghji, AIR 1970 SC 1273 held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice nothing would preclude the Court from rectifying the error

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... ..." (Emphasis supplied)

14. The Tribunal had the authority under the statutory

provisions of law to entertain the review application and correct

the mistake occurred, but for the said mistake, the earlier

judgment would not have been passed as was on erroneous

assumption which in fact did not exist, as its perpetration would

result in miscarriage of justice, thus nothing would preclude the

Tribunal from rectifying the error.

15. The judgment impugned dated 9.3.2021 is on the

erroneous belief of the burden to produce the licence to the

Tribunal by the owner and driver. Though licence could have

been produced by the insurance company as well as the

Tribunal could have called for from Investigating Officer,

unnecessary burden was laid on the owner / driver after the

order under Section 170 of the M.V. Act. In view of the

provisions of Section 149 prior to the Motor Vehicles

(Amendment) Act, 2019 and now the corresponding Section 150

of the M.V. Act on being entitled to defend the action, the

insurance company can defend on a condition excluding driving

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by a named person or persons or by any person who is not duly

licensed, or by any person who has been disqualified for holding

or obtaining a driving licence during the period of

disqualification. The appellant herein as owner of the involved

vehicle has moved the appeal contending that the driver was

having valid and effective driving licence on the date of

accident. Along with the appeal, Civil Application No.1 of 2022

has been preferred for recording the additional evidence. This

Court is of the view that directing in the appeal, if the document

of licence is considered as valid and effective without providing

opportunity to the insurance company to raise the defence if

necessary, then that would be considered as breach of principle

of natural justice, and such opportunity can be given only by

remanding the matter to the concerned Tribunal, where

evidence can be recorded to that aspect.

16. In view of the reasons given hereinabove, the appeal on

this primary ground is allowed. The Tribunal is ordered to

reconsider the judgment, permitting the owner and/or driver to

produce the licence on record as they are willing to produce so

and thereafter on re-examination and only on that issue of

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licence, if any examination of any witness by either of the

parties to the lis is required, the Tribunal shall permit the same

in this regard and the matter be heard on merits and it shall be

decided within a reasonable period of time, preferably within a

period of four months on the receipt of the order of this Court.

17. In view of the disposal of the appeal, Civil Application No.1

of 2021 stands disposed of.

18. Civil Application No.1 of 2022 stands allowed. The

additional document is ordered to be produced before the

concerned Tribunal, and MACP No.370 of 2014 is ordered to be

restored on the original file of the concerned Tribunal.

(GITA GOPI,J) Bharat