Kerala High Court
Managing Partner vs Pathumma on 10 October, 2024
"C.R."
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 10TH DAY OF OCTOBER 2024 / 18TH ASWINA, 1946
MACA NO. 111 OF 2021
AGAINST THE ORDER/JUDGMENT DATED 28.05.2020 IN OPMV NO.1042
OF 2017 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA
APPELLANT/1ST RESPONDENT:
MANAGING PARTNER,
PRIME SANITARIES, 39/5778, AMBIKAPURAM CHURCH
ROAD, PANAMPILLY NAGAR, KOCHI-682036.
BY ADV P.M.MOHAMMED SHIRAZ
RESPONDENTS/PETITIONERS & RESPONDENTS 2 & 3 IN OP(MV):
1 PATHUMMA,
AGED 71 YEARS
W/O.LATE BAKKAR, EDAPPARA HOUSE, CHARIS JUNCTION,
PEZHAKKAPILLY P.O., MULAVOOR VILLAGE, MUVATTUPUZHA
TALUK, ERNAKULAM DISTRICT-686673.
2 NIZAR T.A.,
AGED 54 YEARS
S/O.LATE BAKKAR, EDAPPARA HOUSE, CHARIS JUNCTION,
PEZHAKKAPILLY P.O., MULAVOOR VILLAGE,
MUVATTUPUZHA. (NOW RESIDING AT THAIPARAMBIL HOUSE,
PARATHODE KARA, KANJIRAPILLY TALUK, KOTTAYAM-
686512).
3 NISHAMOL E.B., .
AGED 48 YEARS
D/O.LATE BAKKAR, EDAPPARA HOUSE, PEZHAKKAPILLY
P.O., MULAVOOR VILLAGE, MUVATTUPUZHA-686673
(PRESENT ADDRESS-NISHAMOL E.B., W/O.IRSHAD,
KARAKKUNNEL HOUSE, CHARIS JN., PEZHAKKAPILLY P.O,
MUVATTUPUZHA-686673).
4 SAINA E.B.,
AGED 44 YEARS
D/O.LATE BAKKAR, EDAPPARA HOUSE, PEZHAKKAPILLY
P.O., MUVATTUPUZHA-686673, (PRESENT ADDRESS-SAINA
E.B., W/O.ALI, AIKKARAPARAMBIL HOUSE,
CHALIKKADAVU, RANDAR P.O., MUVATTUPUZHA-686673).
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MACA NO. 111 OF 2021 -2-
5 RAHMATH E.B.,
AGED 41 YEARS
D/O.LATE BAKKAR, EDAPPARA HOUSE, PEZHAKKAPILLY
P.O., MULAVOOR VILLAGE, MUVATTUPUZHA-686673
(PRESENT ADDRESS, RAHMATH E.B., W/O.PAREETH A.S.,
AMBATTUKUDY HOUSE, KOTHAMANGALAM P.O., PIN-
686691).
6 JYOTHISH V.V.,
S/O.VASUDEVAN, ARIMBORADITHARA HOUSE, NEAR
ALAKKAPARAMBU THENGATHRI TEMPLE, VALAMANGALAM
SOUTH P.O., THURAVOOR, CHERTHALA-688532.
7 NEW INDIA ASSURANCE COMPANY LTD.,
DIVISIONAL OFFICE, 36/707, KOTTAKAL ARYA
VAIDYASALA BUILDING, M.G.ROAD, PB.NO.2451,
ERNAKULAM-682016, REP. BY MANAGER.
BY ADV SRI.VPK.PANICKER
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 24.09.2024, THE COURT ON 10.10.2024 DELIVERED THE
FOLLOWING:
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MACA NO. 111 OF 2021 -3-
"C.R"
J U D G M E N T
Whether the Motor Accidents Claims Tribunal can
exercise the power of review once the claim petition under
Section 168 of Motor Vehicles Act, 1988 is ordered? The
owner of the vehicle involved in the accident has come up
before this Court in appeal raising this seminal question of
law.
2. The facts for disposal of this appeal are as follows:
On 04.05.2017 at 12.05 p.m. one Mr.Bakkar, husband of the
first claimant and father of claimants 2 to 5, was hit down by
a Tata Ace Dicor bearing registration No.KL-7/CD-2149 which
came through the Muvattupuzha - Pezhakkappilly M.C.Road.
The victim was taken to Sabine Hospital, Pezhakkappilly and
then referred to MOSC Medical College Hospital, Kolenchery.
The Insurance Company filed a written statement, inter alia,
contending that the deceased has crossed the road negligently
and the accident was caused due to the negligence of the
deceased. However, the policy was admitted but liability was
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denied. It was further contended that the vehicle was used
without a Certificate of Fitness, which amounts to violation of
the policy and therefore, if at all the claimants are found to be
entitled to compensation, the Insurance Company has to be
given the benefit of recovery from the owner. On behalf of the
claimants, Exts.A1 to A14 were produced. Originally, the
Insurance Company produced only the policy. Based on
pleadings and evidence on record, the Tribunal framed the
following issues:
"1. Whether the accident is the result of
rash and negligent driving by the 2nd
respondent?
2. Whether the petitioners are entitled to get
any compensation from the respondents? If so,
what is the quantum?
3. Relief and costs."
3. On 16.09.2019, the Tribunal allowed the claim and
granted the compensation without reserving the right of the
Insurance Company to recover the amount from the appellant.
Aggrieved by the same, the Insurance Company filed an
application, I.A.No.2771 of 2019 purportedly under Section
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114 read with Section 151 of the Code of Civil Procedure,
1908. The Tribunal vide order dated 25.01.2020 recalled the
award. Pertinently, the Insurance Company had produced
Exts.B2 and B3 which were the information solicited from the
transport authorities under the provisions of the Right to
Information Act, 2005 along with the said application. With
the additional materials on record, the Tribunal proceeded to
consider the claim afresh and by the impugned award, the
Tribunal concluded that since there was no Certificate of
fitness on the date of the accident, the Insurance Company
was entitled to an order of recovery from the owner. The said
award is impugned in the appeal.
4. Heard Sri.P.M.Mohammad Shiraz, the learned
counsel appearing for the appellant, and Sri.V.P.K.Panicker,
learned Standing Counsel appearing for the Insurance
Company.
5. Sri. P.M.Mohammed Shiraz, the learned counsel
appearing for the appellant raised the following two
contentions:
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(i) The Tribunal could not have exercised the power of
review and reviewed the earlier award dated 16.09.2019. The
Tribunal ought to have noticed that an application for review,
which was filed under Section 114 read with Section 151 of
the Code of Civil Procedure, 1908, was not maintainable. The
Tribunal, a creature of statute, namely the Motor Vehicles Act,
1988, has neither an inherent power to recall its order nor the
power of review conferred on it under the statute.
(ii) In terms of Rule 62 of the Central Motor Vehicles Rules,
a newly registered vehicle is deemed to be fit for two (2) years.
Therefore, in the light of the statutory protection given under
Rule 62 of the Central Motor Vehicles Rules for a newly
registered vehicle, no separate Fitness Certificate is required
and therefore, the award of the Tribunal is unsustainable.
6. On the other hand, the learned Standing Counsel
appearing for the Insurance Company, Sri.V.P.K.Panicker,
submitted that the Tribunal has inherent power to recall its
order in terms of the provisions contained under Section
169(2) of the Motor Vehicles Act, 1988. He pointed out that
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for each and every procedural error committed by the
Tribunal in the procedure, the parties cannot be expected to
seek rectification of the error by invoking the power of
superintendence of the High Court under Article 227 of the
Constitution of India. Therefore, according to
Sri.V.P.K.Panicker, the Tribunal rightly entertained the
application for review in order to render justice. In so far as
the merits of the case is concerned, Sri.V.P.K.Panicker
submitted that as per the records produced before the
Tribunal which were obtained by the insurance company
under the provisions of the Right to Information Act, revealed
that the vehicle had no fitness.
7. In reply, the learned counsel for the appellant, Sri.
P.M.Mohammad Shiraz, would point out that as per Ext.B3
dated 05.03.2019, it is specifically noticed by the authorities
that on 07.05.2015 the Fitness Certificate in respect of the
vehicle was issued. He further submitted that the initial
Certificate of Fitness issued by the competent authority was
valid for a period of two (2) years in terms of the provisions
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contained under Rule 62 of the Central Motor Vehicles Rules
and thus the requirement to renew the fitness occurred only
in the year 2017. Admittedly, the accident occurred on
04.05.2017, when the initial Fitness Certificate was in force
and therefore, the contention of the insurance company
cannot be sustained.
8. I have considered the rival submissions raised
across the Bar.
9. For the consideration of this appeal, this Court
deems it appropriate to deal with the following two questions:
"1. Whether the Tribunal has got a power of
review either under Order 47 Rule 1 or under the
provisions of the Motor Vehicles Act, 1988.
2. Whether the finding of the Tribunal that the
vehicle did not have the Fitness Certificate on
the date of the accident is correct or not."
10. Before venturing into answering the questions
raised above, it would be apposite to extract the provisions
dealing with the power of the Tribunal. Chapter-XII-Section
165 of the Motor Vehicles Act, 1988 deals with the
establishment of the Tribunal. Section 165 is extracted as
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under:
"165. Claims Tribunals. -
(1) A State Government may, by notification in
the Official Gazette, constitute one or more
Motor Accidents Claims Tribunals (hereafter in
this Chapter referred to as Claim Tribunal) for
such area as may be specified in the notification
for the purpose of adjudicating upon claims for
compensation in respect of accidents involving
the death of, or bodily injury to, persons arising
out of the use of motor vehicles, or damages to
any property of a third party so arising, or both.
Explanation. - For the removal of doubts, it is
hereby declared that the expression "claims for
compensation in respect of accidents involving
the death of or bodily injury to persons arising
out of the use of motor vehicles" includes claims
for compensation under section 140 and section
163-A.
(2) A Claims Tribunal shall consist of such
number of members as the State Government
may think fit to appoint and where it consists of
two or more members, one of them shall be
appointed as the Chairman thereof.
(3)A person shall not be qualified for
appointment as a member of a Claims Tribunal
unless he -
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(a) is, or has been, a Judge of a High Court, or
(b) is, or has been, a District Judge, or
(c) is qualified for appointment as a High Court
Judge or as a District Judge.
(4) Where two or more Claims Tribunals are
constituted for any area, the State Government,
may by general or special order, regulate the
distribution of business among them."
11. The application for compensation has to be filed
under Section 166 of the Motor Vehicles Act, 1988. The
powers of the Tribunal to pass an award on an application
under Section 166 are contained under Section 168. Sections
166 and 168 are extracted as under:
"166. Application for compensation. - (1) An
application for compensation arising out of an
accident of the nature specified in sub-section
(1) of section 165 may be made -
(a) by the person who has sustained the injury;
or
(b) by the owner of the property; or
(c) where death has resulted from the accident,
by all or any of the legal representatives of the
deceased; or
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(d) by any agent duly authorized by the person
injured or all or any of the legal representatives
of the deceased, as the case may be :
PROVIDED that where all the legal
representatives of the deceased have not joined
in any such application for compensation, the
application shall be made on behalf of or for the
benefit of all the legal representatives of the
deceased and the legal representatives who have
not so joined, shall be impleaded as respondents
to the application.
(2) Every application under sub-section (1) shall
be made, at the option of the claimant, either to
the Claims Tribunal having jurisdiction over the
area in which the accident occurred or to the
Claims Tribunal within the local limits of whose
jurisdiction the claimant resides, or carries on
business or within the local limits of whose
jurisdiction the defendant resides, they shall be
in such form and contain such particulars as may
be prescribed:
PROVIDED that where no claim for
compensation under section 140 is made in such
application, the application shall contain a
separate statement to that effect immediately
before the signature of the applicant.
(4) The Claims Tribunal shall treat any report of
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accidents forwarded to it under sub-section (6)
of section 158 as an application for
compensation under this Act.
168. Award of the Claims Tribunal. -
(1) On receipt of an application for
compensation made under section 166, the
Claims Tribunal shall, after giving notice of the
application to the insurer and after giving the
parties (including the insurer) an opportunity of
being heard, hold an inquiry into the claim or, as
the case may be, each of the claims and, subject
to the provisions of section 162 may make an
award determining the amount of compensation
which appears to it to be just and specifying the
person or persons to whom compensation shall
be paid and in making the award the Claims
Tribunal shall specify the amount which shall be
paid by the insurer or owner or driver of the
vehicle involved in the accident or by all or any
of them, as the case may be :
PROVIDED that where such application makes a
claim for compensation under section 140 in
respect of the death or permanent disablement
of any person, such claim and any other claim
(whether made in such application or otherwise)
for compensation in respect of such death or
permanent disablement shall be disposed of in
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accordance with the provisions of Chapter X.
(2) The Claims Tribunal shall arrange to deliver
copies of the award to the parties concerned
expeditiously and in any case with a period of
fifteen days from the date of the award.
(3) When an award is made under this section,
the person who is required to pay any amount in
terms of such award shall, within thirty days of
the date of announcing the award by the Claims
Tribunal, deposit the entire amount awarded in
such manner as the Claims Tribunal may direct."
The procedure and powers of the Tribunal are delineated
under Section 169. Section 169 reads as under:
"169. Procedure and powers of Claims Tribunals.
- (1) In holding any inquiry under section 168,
the Claims Tribunal may, subject to any rules
that may be made in this behalf, follow such
summary procedures as it thinks fit.
(2) 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 for all the purposes
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of section 195 and Chapter XXVI of the Code of
Criminal Procedure, 1973.
(3) Subject to any rules that may be made in this
behalf, the Claims Tribunal may, for the purpose
of adjudicating upon any claim for
compensation, choose one or more persons
possessing special knowledge of any matter
relevant to the inquiry to assist it in holding the
inquiry."
12. Having extracted the provisions dealing with the
procedure and the powers of the Claims Tribunal being dealt
with under Section 169, this Court feels it appropriate to deal
with the said provision extensively, in order to find out as to
whether the Tribunal has got an inherent power to recall its
order or the power of review is imbibed under these
provisions.
13. Section 169(1) deals with the procedure while
holding any enquiry under the provisions of Section 168. It
provides that the procedure may be summary as the tribunal
deems fit. Sub-Section (2) provides that the Tribunal has all
the powers of a Civil Court for the purpose of taking evidence
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on oath and of enforcing the attendance of witnesses and of
compelling the discovery and production of documents. Sub-
Section (3) of Section 169 further provides that the Claims
Tribunal, for the purpose of adjudicating upon the claim, may
choose one or more persons possessing special knowledge to
assist it. A plain reading of Section 169 shows that neither the
Tribunal is vested with an inherent power nor the said
provision could be construed as conferring the power on the
Tribunal for review. Parliament while enacting the provisions
contained under the Motor Vehicles Act was conscious not to
confer any specific power on the Tribunals to exercise power
of review nor any inherent power to rectify any errors or
mistakes caused while rendering an award.
14. However, having said so, this Court may have to
consider the most pivotal issue. Whether the Motor Accident
Claims Tribunal can exercise its inherent power, though not
conferred by the statute, and review its order. The answer
perhaps would depend on how the status of the Tribunal is to
be construed. No doubt, while trying an application the
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tribunal has the powers of a civil court. But the said power is
limited and applies only while taking evidence and summoning
the attendance of the witnesses. Could this provision be
construed as conferring the trappings of a "court" on the
Tribunal? The answer would depend on the analysis of various
other provisions also. It would be advantageous to refer to the
subordinate legislation framed by the State of Kerala under
the provisions of the Kerala Motor Vehicles Rules, 1989, we
could see Rule 395. Rule 395 of the Kerala Motor Vehicles
Rules reads as under:
"395. Code of Civil Procedure to apply in certain
cases.‐The provisions of Rules 9 to 13 and 15 to 30 of
Order V, Rules 16 to 18 of Order VI, OrderIX, Rules3
to 10 of OrderXII, Rules 1 to 21 of Order XVI, Rules 1
to 3 of Order XXIII and Order XXVI of the First
Schedule to the Code of Civil Procedure, 1908, shall,
so far as may be, apply to the proceedings before the
Claims Tribunal."
15. A cumulative reading of Section 169 and Rule 395
of the Kerala Motor Vehicle Rules, 1989 shows that neither
the Parliament nor the State Legislature intended to confer
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the power on the Tribunal to exercise the powers of the Court
so as to automatically derive the power under Order 47 Rule
1 of the Code of Civil Procedure, 1908. Even when Rule 395
was framed, the State Legislature did not include Order 47
Rule 1 within its ambit.
16. Leaving aside this issue momentarily, the
consideration of this Court would have to be bestowed on the
various precedents on the points which have been cited across
the Bar in order to support the contentions of the respective
parties. The endeavor of this Court will be to find out as to
whether by virtue of the precedents, it could be held that the
Tribunal can exercise the power of review. In Asmath Khan
v. Chandrahasa Bangara and Others (2006 (4) KLT 494)
a Division Bench of this Court while considering the question
as to whether the Tribunal has an implied vested power to
review its own order to achieve the object of the Act and to
avoid manifest justice held that if the circumstances under
Order 47 Rule 1 exist, then the Tribunal could exercise the
power of review. Paragraph Nos.3 and 4 of the judgment of
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the Division Bench in Asmath Khan (supra) are extracted
for reference:
"3. The procedure to be followed and powers of
the Motor Accidents Claims Tribunal are
prescribed under S.169 of the Motor Vehicles
Act 1988 (for short 'the Act') which reads as
follows:
"169. Procedure and powers of Claims
Tribunals.-- (1) In holding any inquiry under
Section 168, the Claims Tribunal may,
subject to any rules that may be made in this
behalf, follow such summary procedure as it
thinks fit.
(2) 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 materials objects and for such other
purposes as may be prescribed; and the
Claims Tribunal shall be deemed to be a Civil
Court for all the purposes of Section 195 and
Chapter XXVI of the Code of Criminal
Procedure, 1973 (2 of 1974).
(3) ...(Not applicable)".
Under Section 169(2), the Claims Tribunal is
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deemed to be a civil court. In Velunni v.
Vellakutty 1989 (2) KLT 227 and other various
cases, this Court had consistently held that in
order to do justice for which it has been
constituted, the Tribunal would have power to
apply the principles underlining the provisions
of the Code of Civil Procedure, even though not
rendered specifically applicable. The Court also
considered the fact that the Claims Tribunal is
having all attributes and trapping a civil court
and it is deemed to a civil court as specifically
mentioned in Section 169(2). The Tribunal has
been impliedly vested with power to review its
own order to achieve the object of the Act and to
avoid manifest injustice if circumstances as
mentioned in Order XLVII exists. Same view
taken by the Division Bench in Rajan's case
(supra) was earlier also expressed by this court,
not only regarding the Motor Accidents Claims
Tribunal, but also other similar Tribunals which
has the trapping of civil court, as can be seen
from the following decisions. K.V. Aboo v.
Commissioner for Workmen's Compensation
1977 ACJ 446, Abdulla v. Rent Controller 1984
KLT 865 and United India Insurance Co. Ltd. v.
George 1987 (2) KLT 776. Therefore there is no
ground to refer the matter to the Full Bench
decision in Rajan's case (supra) needs no
reconsideration. The above decision of the
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Division Bench was not pointed out to the Single
Bench. Hence decision in Abdul Majeed's case is
overruled.
4. Even though there is power to review in
appropriate circumstances in the interest of
justice, if the circumstances mentioned under
Order XLVII are existing, the Tribunal has no
power to sit in appeal over his own award in the
guise of review. As held by the Apex Court in
Meera Bhanja v. Nirmalakumari Choudhary
(1995) 1 SCC 170, the review proceedings is not
equivalent to an appeal or revision and review
petition can be entertained only on the ground
of error apparent on the face of record. See also
the decision in Thungabhadra Industries Ltd. v.
Government of Andhra Pradesh, AIR 1964 SC
1372. Here in this case, when petitions were
filed, the Tribunal found that the original award
contained error apparent on the face of the
record which can be corrected without
considering any additional material, but by
merely looking at the record and would not
require any long drawn process of reasoning on
points where there may be conceivably of two
opinions. Here, the appellant has also no case
that any new document was considered by the
Tribunal. Actually Tribunal corrected only
apparent errors in the original award. Even
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otherwise when the appeal was heard, we have,
as appellate court, considered the matter and
came to the view that the review award requires
no interference. The original award contained
full of patent errors and hence the award was
reviewed. Further, the appellant-claimant was
given more amounts than the original amount
awarded and he cannot contend that error can
be corrected only at the claimant's instance.
Considering the total amount granted for a
fracture of left leg below knee, the Tribunal
awarded Rs. 2,49,520/- by the review award and
the amount awarded is not inadequate in any
view of the matter. The insurance company has
not filed any appeal. The appellant is not at all
aggrieved by the impugned award."
17. While considering a pari materia provision under
the Motor Vehicles Act, 1939, a Division Bench of this Court
in Velunni v. Vellakutty (1989 KHC 396) held that the
Tribunal is not a Court though it performs functions similar to
a Court and it is free to follow any procedure which it
considers expedient in the interest of justice so long as the
procedure is not inconsistent with the rules of natural justice.
It was further held that in order to do justice for which it has
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been constituted, the Tribunal would have the power to apply
the principles underlying the provisions of the Code of Civil
Procedure even though not rendered specifically applicable.
18. The question as to whether the Tribunal has got the
power of review in terms of Section 168 of the Motor Vehicles
Act, came up directly for consideration before the Supreme
Court in United India Insurance Co. Ltd. Vs. Rajendra
Singh and Others [(2000) 3 SCC 581]. The Supreme Court
was called upon to decide this issue especially since the
allegations of fraud and misrepresentation were raised which
necessitated the Insurance Company to move an application
for review before the Tribunal. Paragraph No.16 of the
judgment of the Supreme Court reads as under:
"...16. Therefore, we have no doubt that the
remedy to move for recalling the order on the
basis of the newly discovered facts amounting to
fraud of high degree, cannot be foreclosed in
such a situation. No court or tribunal can be
regarded as powerless to recall its own order if
it is convinced that the order was wangled
through fraud or misrepresentation of such a
dimension as would affect the very basis of the
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claim."
19. It may thus appear that the point raised in the
appeal could be concluded based on the judgment of the Apex
Court in Rajendra Singh (supra) and also in view of the
judgment of the Division Bench of this Court in Asmath Khan
(supra). However, this Court cannot remain oblivious of the
factual situation which arose before the Supreme Court in
Rajendra Singh (supra) as well as before this Court in
Asmath Khan (supra) are not present here. In Asmath Khan
(supra), the Division Bench proceeded to hold that the
Tribunal could exercise the inherent power to recall an order
where conditions stipulated under Order 47 Rule 1 exist and
that the tribunal has all the trappings of the court under the
Code of Civil Procedure, 1908. However, in ICICI Lombard
General Insurance Company Vs. M.D.Davasia @ Jose and
Another (2019 (4) KHC 157), a Full Bench of this Court had
an occasion to decide the status of the Motor Accidents Claims
Tribunal constituted under Section 165 read with Section 166
of the Motor Vehicles Act. Paragraph Nos.6 and 7 of the
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judgment of the Full Bench are extracted hereunder:
"...6. From the above decisions, it can be
ordinarily understood that MACTs, though it has
some trappings of a 'Court', is not a 'Court', and
therefore, its constitution is not governed by any
legislation applicable to Civil Courts. The
intention behind the constitution of a separate
Tribunal to adjudicate claims coming under the
Motor Vehicles Act, 1988 which provides for the
procedure is that, the Tribunal is entitled to
follow such summary procedure as it may think
fit, subject to the Rules that is prescribed.
7. S.158(6) of the Motor Vehicles Act, 1988,
makes it incumbent on the part of a police
officer to forward any information regarding any
accident involving death or bodily injury of any
person in the form of a report to the Claims
Tribunal having jurisdiction within 30 days from
the date of recording of such information and
S.166(4) of the Motor Vehicles Act, 1988 directs
the Claims Tribunal to treat such a report as an
application for compensation under that Act.
This provision would indicate that the claimant
need not even file an application for the purpose
of raising a claim under the Motor Vehicles Act,
1988. That is the reason why elaborate
procedures as required in a civil suit is not
necessary in adjudicating matters before a
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Claims Tribunal"
20. While answering the question raised before it, the
Full Bench unequivocally held that the Tribunal constituted in
terms of the provisions contained under Section 165 of the
Motor Vehicles Act is not a 'Court'. Pertinently, the judgment
of the Division Bench in Asmath Khan (supra) was also dealt
with.
21. It is also brought to the notice of this Court that in
Anjali Vs Ragesh [2020(5) KHC 392], a learned Single
Judge of this Court following the dictum laid down in Asmath
Khan (Supra) held that the Tribunal is having the trappings
of a court and is deemed to be a civil court as mentioned in
Section 169(2). Pertinently, the decision of the Full Bench was
not taken notice by the learned Single Bench in the aforesaid
decision.
22. Be that as it may, this Court has to deal with the
important issue regarding the precedential value of the
judgment of the Division Bench in Asmath Khan (supra) once
the Full Bench had rendered the decision in M.D.Davasia
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(supra). It is pertinent to note that it is after referring to the
judgment in Asmath Khan (supra), the Full Bench
proceeded to hold that the Tribunal constituted under Section
165 of the Motor Vehicles Act while dealing with an
application under Section 166 does not have the trappings of
a court.
23. Going by the law of precedents, this Court is
bound by the principles laid down in Asmath Khan (supra) by
the Division Bench. However, this Court has an onerous task
at hand while determining whether the decision of the Division
Bench in Asmath Khan (Supra) has lost its precedential value
once the Full Bench in M.D.Davasia (supra) had answered
the reference.
24. Before proceeding further on this issue, this Court
feels it appropriate to refer to a few of the precedents in order
to find out the extent of power of review under Order 47 Rule
1 of the Code of Civil procedure qua the exercise of the power
by the Tribunals. In State of West Bengal and Others Vs.
Kamal Sengupta and Another [(2008) 8 SCC 612], the
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Hon'ble Supreme Court while dealing with the power of
review conferred on the Administrative Tribunals under the
Administrative Tribunals Act, 1985 held that the power under
Section 22(3)(f) is akin to the power conferred on courts under
Order 47 Rule 1 of the Code of Civil Procedure and can be
used only if circumstances exits.
25. In Government of NCT of Delhi through its
Secretary, Land and Building Department and Another
Vs. K.L.Rathi Steels Ltd and Others [(2024) 7 SCC 315],
it was held by the Supreme Court that when the power of
review is conferred by a statute, then it would be
inappropriate, nay incompetent for the court to travel beyond
the contours of the provision conferring such power. It was
further held that the power of review is not an inherent power.
26. The Hon'ble Supreme Court in K.L.Rathi Steels
(supra) went to hold that when the power of the review is
traceable to a statute then the exercise of inherent power to
review is not permissible. However, the power of review
should not be confused with that of the inherent power to
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recall any order. Such inherent power is imbibed in all courts
or tribunals to correct any palpable error and to prevent
miscarriage of justice in case of fraud or misrepresentation is
made. The subtle difference between the exercise of the
inherent power of the court under Section 151 and Order 47
Rule 1 of CPC is that the Court can exercise inherent power to
correct any procedural irregularity while the power of review
cannot be exercised unless otherwise the grounds under
Order 47 Rule 1 are specifically made out. It must be borne
in mind that when an alternative remedy is carved out by
Order 47 Rule 1 of the Code of Civil Procedure, 1908, it would
be wholly impermissible to exercise the inherent power to
recall or review an order especially since the object of Section
151 of the Code of Civil Procedure is to supplement and not to
replace the remedies provided under the Code of Civil
Procedure.
27. Therefore, the inevitable conclusion would be that
the tribunal cannot exercise the inherent power to recall or
review an order when the power of review is separately
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conferred on the court. This leads us to the most important
question. Whether the Tribunals can exercise the inherent
power in the absence of a separate power under the
concerned statute enabling them to exercise the power? This
would depend upon the constitution of the tribunal under a
particular statute. It may be possible to hold that for the
tribunal(s) to exercise inherent power, there need not be a
separate power conferred under the statute. However, that
cannot be said so in case of review.
28. In Grindlays Bank v. Central Government
Industrial Tribunal and Others [1980 (Supplement) SCC
420], the Honourable Supreme Court was called upon to
consider the question as to whether an Industrial Tribunal
constituted under the provisions of the Industrial Dispute Act,
1947, has got a power to set aside an ex parte award. The
Supreme Court after analysing the scheme of the Industrial
Disputes Act, 1947 held that the power of the Industrial
Tribunal to set aside ex parte order, if it is shown that the
party was prevented by sufficient cause from appearing before
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the Tribunal, is inherent. It was further held that the power to
set aside an ex parte order is ancillary to the main power.
29. Rule 395 of the Kerala Motor Vehicles Rules, 1989
makes it clear that the provisions of Order 9 Rule 13 of the
Code of Civil Procedure, 1908 are made specifically applicable
to the proceedings before the Tribunal. However, this Court
is not concerned with the exercise of the powers of the
Tribunal for setting aside an ex parte order. Suffice to say
that there is a sea of difference when the Tribunal exercises
its power to set right a procedural irregularity and while
exercising the power of review and substituting its views
which were taken earlier.
30. Due to the rampant tribunalisation under the
multifarious enactments, the issue regarding the exercise of
inherent powers and also the power of review by the Tribunals
became more prominent.
31. In Greater Noida Industrial Development
Authority Vs Prabhjith Singh Soni and Another [(2024)
6 SCC 767], the Supreme Court was called upon to decide
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as to whether the National Company Law Tribunal while
considering an application under the Insolvency and
Bankruptcy Code, 2016 could exercise the inherent power
conferred upon it under the National Company Law Tribunal
Procedure Rules, 2016 and review an order. Interpreting
Rule 11 of the NCLT (Procedure) Rules, 2016, the Apex Court
cautioned that the said power is to be exercised sparingly, and
not as a tool to re-hear the matter. It was further held by the
Apex Court that "ordinarily, an application for recall of an
order is maintainable on limited grounds inter alia where,
(a) the order is made without jurisdiction;
(b) the party aggrieved with the order is not served with a
notice of proceedings in which the order under recall has been
passed; and
(c) the order has been obtained by misrepresentation of facts
or by playing fraud upon the court/tribunal resulting in gross
failure of justice."
32. In the touchstone of the principles laid down by the
Honourable Apex Court in the K.L.Rathi Steels (Supra) and
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Greater Noida Development Authority (supra) and also in
the light of the decision of the Full Bench of this Court in M.A
Davasia (supra), it becomes evident that views expressed by
the Division Bench of this Court in Asmath Khan (supra)
stand in direct conflict with the decisions rendered by the
Hon'ble Supreme Court.
33. Once it is found that the decision of the Division Bench
in Asmath Khan (supra) is directly in conflict with the
decision of the Full Bench of this Court in M.A.Davasia
(supra) and the principles laid down by the Supreme Court in
Greater Noida Development Authority (supra), the
inescapable conclusion is that the decision of the Division
Bench in Asmath Khan (supra) stands impliedly overruled
and that in the light of decisions of the Hon'ble Supreme Court
in KL Rathi Steels (Supra) and Greater Noida
Development Authority (supra), it can be no longer
considered as a good law. Resultantly, it must be held that in
the absence of any provision under the Motor Vehicles Act,
1988 conferring specific power on the Motor Accidents Claim
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Tribunal to review its order, the tribunal does not have the
power to review its order.
34. It is pertinent to note that in the instant case,
application for review was filed under Section 114 read with
Section 151 of the Code of Civil Procedure, 1908. Thus, it is
clear that the Insurance Company did not invoke the inherent
power even if any, but wanted to invoke the powers of a Civil
Court under Section 114 and read with Section 151 of the
Code of Civil Procedure, 1908. Once the Full Bench of this
Court in M.D.Davasia (supra) had held that the Motor
Accidents Claims Tribunal is not a Court under the provisions
of the Code of Civil Procedure, 1908, it has to be held that an
application under Section 114 read with Section 151 of the
Code of Civil Procedure,1908 is not maintainable.
35. Incidentally, this Court has to deal with the
alternate submissions of Sri.V.P.K.Panicker, learned Standing
Counsel appearing for the Insurance Company, pointing out
that the Tribunal under Section 169 has got ample powers to
regulate its procedure while dealing with an application under
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Section 168. No doubt, the learned counsel is right in
contending that the Tribunal has got its own powers to
regulate the procedure. However, the striking difference is
that the power to regulate the procedure cannot be equated
with the power to review an order passed. This is more so
when, the power of review has to be conferred by the statute
on the Court or Tribunal, except when the power is exercised
by the High Court being the Court of record under Article 215
of the Constitution of India. Therefore, this Court has no
hesitation to reject the aforesaid contention.
36. There is yet another reason as to why this Court
should find that the exercise of the power of the Tribunal
recalling its earlier award passed on 16.09.2019 is without
jurisdiction. As pointed out by the learned Counsel
Sri.P.M.Muhammed Shiraz for the appellant, the Insurance
Company did not produce any documents except the policy
while filing their written statement. Only along with the
application for review, additional documents were filed.
Therefore, it is evident that the Tribunal had a change of
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opinion after seeing the additional documents, which is
impermissible. On this ground also, this Court has to find that
the award impugned in this appeal was rendered without
jurisdiction. Thus on analysing the points discussed above,
this Court has to conclude that in the light of the principles
carved out by the Hon'ble Supreme Court in K.L.Rathi Steels
Ltd. (supra) read in cumulative with the judgment of the Full
Bench of this Court in M.D.Davasia (supra), the Motor
Accidents Claims Tribunal does not have the power to review
its order except under the circumstances of fraud or
misrepresentation as expounded by the Supreme Court in
Rajendra Singh (supra). Similarly, in the absence of any
specific power to review, the tribunal cannot exercise the
inherent power unless the three conditions specified by the
Supreme Court in K.L.Rathi Steels (supra) exist.
37. Coming to the second question posed by this Court
"whether the Tribunal could have ordered recovery from the
owner", it is to be noted that while considering the said issue,
the Tribunal failed miserably to refer to Rule 62 of the Central
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Motor Vehicle Rules. The Tribunal failed to take notice of the
basic principle enshrined under the provision of Rule 62 of the
Central Motor Vehicle Rules.
38. When a new vehicle is registered, it is deemed that
it has a fitness certificate for a period of two (2) years from
the date of registration. There was impeachable evidence
before the Tribunal to show that the vehicle was registered on
or after 07.05.2017. Therefore, when the accident took place
on 04.05.2017, the vehicle was having a valid Fitness
Certificate and therefore the Tribunal could not have ordered
recovery of the compensation from the owner. Hence, this
Court has no iota of doubt in its mind to hold that the
impugned award is required to be set aside.
As an upshot of these discussions, this Court holds that
while exercising the powers under Sections 165, 168 and 169
of the Motor Vehicles Act, the Motor Accidents Claims
Tribunal does not have a power of review nor it can exercise
inherent powers to recall an award except on the procedural
aspects and also in cases where fraud or misrepresentation is
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alleged. Resultantly, the appellant is entitled to succeed. The
award dated 28.05.2020 in O.P.(M.V.)No.1042 of 2017 on the
file of the Motor Accidents Claims Tribunal, Muvattupuzha is
set aside to the extent of ordering the Insurance Company to
recover the compensation so paid from the appellant owner.
Ordered accordingly. No order as to costs.
Sd/-
EASWARAN S.
JUDGE
vv
