Mohan Lal vs National Insurance Co. Ltd. And ...
2023 Latest Caselaw 314 j&K

                                                                        Sr.No. 14


               HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                             AT JAMMU

                                                     OWP No. 471/2011
                                                     IA No. 653/2011

Mohan Lal                                                                ....Petitioner(s)

                   Through :- Mr. Ashwani Thakur, Advocate.

         V/s

National Insurance Co. Ltd. and Ors.                                   ....Respondent(s)


                   Through :- Mr. Sanjay K. Dhar, Advocate.
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

                                      ORDER

21.02.2023.

The petitioner who is registered owner of offending vehicle is

aggrieved of and has challenged award dated 30.11.2009 passed by Motor

Accidents Claims Tribunal, Jammu ["the Tribunal"] in File No. 352 Claim

titled Ashok Kumar v. National Insurance Co. Ltd and Ors. The petitioner has

also assailed the subsequent order i.e. corrigendum dated 29.10.2009 issued to

the aforesaid award by the Tribunal whereby the tribunal has corrected some

typographical/inadvertent mistake.

Briefly, put, the facts leading to the filing of this petition under Article

227 of the Constitution of India are that, one Ashok Kumar who was injured in a

Motor Vehicle Accident involving the vehicle of the petitioner filed a claim

petition before the Tribunal for seeking compensation. The claim petition filed

by Ashok Kumar was contested only by the National Insurance Company where

as the petitioner and the driver of the offending vehicle chose not to contest the WP(C) No. 2210/2021 CM No. 5528/2022

same. On the basis of the pleadings of the parties, the tribunal inter alia framed

issue No. 3 which reads thus:

3.Whether at the time of accident, driver of offending vehicle was not holding a valid and effective

driving license and drove the vehicle in violation of terms and conditions of the insurance policy, if

so what is its effects? OPRI.

Evidently, the onus to prove the aforesaid issue was on the insurance

company. The insurance company produced Ram Singh, Amarjeet Singh and

Harbans Lal as its witnesses to discharge the onus.

The tribunal after referring to the statements made by the aforesaid

witnesses and evaluating their evidence came to the conclusion that "the

evidence produced by the respondent/insurer does not favour the insurance and,

accordingly, the issue is decided against the respondents and in favour of the

petitioner". However, while passing the final award on 30.11.2009, the Tribunal

without disclosing any reason or giving any justification directed the insurance

company to satisfy the award in the first instance and then recover the same

from the owner of the offending vehicle i.e. petitioner herein. The insurance

company having found contradiction between the findings returned by the

Tribunal on issue No. 3 and the ultimate direction of "pay and recover"

contained in the operative portion of award filed an application for amendment

of the award.

Indisputably, the aforesaid application filed by the insurance company

was taken up by the Tribunal without putting the petitioner herein and other

respondents to notice.

The plea of the insurance company was accepted and impuged award

passed on 30.11.2009 was amended by providing that findings returned by the

Tribunal on issue No. 3 shall be read as under:

WP(C) No. 2210/2021 CM No. 5528/2022

"As issue decided in favour of the respondent company instead of the petitioner and the

evidence produced by the respondent insurer favours the insurer instead of does not favour the insurer

and this corrigendum dated 29.12.2009 was directed to form a part of the award."

It is the case of the petitioner that since the impugned award as also the

corrigendum impugned were both ex-parte and at his back, as such, he could

know about the passing of the award as also the corrigendum when the insurance

company filed an execution petition for recovering the amount of compensation

which it had paid to the claimant -Ashok Kumar. It is at this stage, the petitioner

filed the instant petition.

The impugned corrigendum is assailed by the petitioner primarily on

the ground that the same has the effect of altering the contents of the original

award and could not have been done without providing an opportunity of being

heard to the petitioner.

It is submitted that the corrigendum passed by the Tribunal is in

violation of the principles of natural justice and nullity in the eye of law.

The petitioner also points out glaring illegality committed by the

Tribunal in passing the award, in that, the conclusions arrived at by the Tribunal

are not in consonance with the findings of facts recorded on issue No. 3.

Mr. Dhar, learned counsel appearing for the Insurance Company

opposes the petition of the petitioner on the ground that in the wake of

availability of alternative remedy of filing an appeal/ review, the petitioner

cannot be permitted to invoke the supervisory jurisdiction of this court vested

under Article 227 of the Constitution of India

Strong reliance is placed by Mr. Dhar, learned counsel for the

respondents, on the judgment passed by the Supreme Court of India in the case

of "Sadhana Lodh v. National Insurance Company Ltd, 2003 (3) SCC 524."

WP(C) No. 2210/2021 CM No. 5528/2022

Having heard learned counsel for the parties and perused the material

on record, I am of the considered view that the manner in which the Tribunal has

proceeded to pass the award and then issue corrigendum does call for the

exercise of supervisory jurisdiction conferred on this Court under Article 227 of

the Constitution of India. The Tribunal has not proceeded within the parameters

of its jurisdiction and has committed a glaring illegality in so far as the impugned

award is concerned. The direction issued by the Tribunal in the operative portion

of the award, directing the insurance company to pay the compensation to the

injured in the first instance and then recover it from the owner, is totally foreign

to the findings of fact returned by it while deciding issue No. 3.

The Tribunal has committed a further illegality in issuing corrigendum

to the impugned award without even putting the petitioner herein and other

respondents to notice. The corrigendum, on the face of it, is in violation of the

principles of natural justice and nullity in the eye of law. Such an order cannot be

permitted to stand even for a while.

When such is the glaring illegality, committed by the Tribunal and

when all parameters of exercise of jurisdiction are thrown to wind a party

aggrieved is well within its rights to invoke the Supervisory Jurisdiction of this

Court to seek a direction to the Tribunal to perform its duties within the bounds

of its jurisdiction, availability of alternative remedy notwithstanding.

It is not correct to say that while issuing corrigendum impugned, the

Tribunal has merely corrected typographical or inadvertent error.

From entire reading of the award particularly the discussion made on

issued No. 3 and the conclusions arrived at in the operative portion of the award, WP(C) No. 2210/2021 CM No. 5528/2022

it is abundantly clear that by issuing the corrigendum, the Tribunal has virtually

altered the entire complexion of the award.

Be that as it may, since, the Tribunal has failed to follow the principles of natural

justice before passing the impugned corrigendum which, admittedly, affects the

petitioner adversely, the impugned corrigendum cannot sustain in law. So is the

position with regard to the glaring contradiction that appears in the award

between the findings of fact returned on the basis of evidence led by the

insurance company on issue No. 3 and the direction of "pay and recover" issued

against the petitioner. The two are mutually exclusive and cannot co-exist. This

makes the award to the aforesaid extent pulpably wrong having been passed by

the Tribunal ignoring the set parameters of exercise of jurisdiction by the judicial

forums.

The judgment relied upon by Mr. Dhar, learned counsel for the

respondents, is not of much assistance to the respondent insurance company, in

that, the contours laid down by the Supreme court for exercise of jurisdiction

under Article 227 of the Constitution of India are clearly met in the instant case.

Ordinarily, in such a situation, this court would have relegated the

petitioner to the remedy of review or appeal but having regard to the peculiar

facts and circumstances of this case as narrated above, this court has decided to

invoke the supervisory jurisdiction under Article 227 of the Constitution of India

to set the wrong right.

For the aforesaid reasons, this petition is allowed. Corrigendum dated

29.12.2009 is quashed. The impugned award to the extent, there is contradiction

between the findings returned on issue No. 3 and the direction of "pay and

recover" issued against the petitioner, is set aside.

WP(C) No. 2210/2021 CM No. 5528/2022

The matter shall go back to the tribunal to re-determine and decide the

issue No. 3 afresh in the light of evidence on record and then issue the direction

as may be warranted, with regard to "pay and recover" or otherwise.

Parties to appear before the Tribunal on 15.03.2023.

(Sanjeev Kumar) Judge

Jammu:

21.02.2023.

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