Smt. Bharati Jena And Others vs Regional Manager
2023 Latest Caselaw 5001 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK

                                RVWPET No.237 of 2012

                 Smt. Bharati Jena and others       ....          Petitioners
                                                 Mr. B.N. Mohanty, Advocate

                                          -versus-

                 Regional Manager, United India     ....         Opp. Parties
                 Insurance Co. Ltd., Bhubaneswar
                 and another
                                               Mr. Mahitosh Sinha, Advocate
                                                            (For O.P. No.1)


                             CORAM:
                             JUSTICE A.K. MOHAPATRA

                                           ORDER

Order No.                                 03.05.2023
    15.     1.      By filing the present review petition, the Review

Petitioners, who were Opposite Parties in O.J.C. No.2082 of

2002 and Claimants before the Motor Accident Claim Tribunal,

have sought for review of order dated 19.8.2011 passed by the

learned Single Bench disposing of the writ petition with the

consent of the parties by awarding a compensation of

Rs.2,20,000/-.

2. The factual background of the case as has been narrated in

the writ petition filed by the Insurance Company, in a nutshell, is // 2 //

that the present Review Petitioners, who were Opposite Parties

No.1 to 4 in the writ petition as Claimants filed a claim case

bearing Misc. Case No.290/1999 claiming compensation for the

death of one Rabindranath Rout in a motor vehicle accident. On

being noticed by the Motor Accident Claim Tribunal, the

Petitioner Insurance Company entered appearance and thereafter

the case was posed for hearing. In the meantime, the Petitioner-

Insurance Company filed its written statement before the Motor

Accident Claim Tribunal. While the matter stood thus, a State

Level Lok Adalat took place on 29.10.2000. In the said Lok

Adalat, the claim case bearing Misc. Case No.290/1999 was

compromised on 29.10.1999 subject to certain conditions based

on such compromise. Learned Motor Accident Claim Tribunal

passed its final order on 29.10.2000.

3. The pleadings in the writ petition also reveal that the Writ

Petitioner-Insurance Company deputed its investigator to verify

the genuineness of the case and to verify the G.R. Case record.

On verification of the records, it was ascertained by the

investigator that the salary of the deceased was much lower than // 3 //

that has been stated in the claim petition. Although the

Claimants claimed Rs.4,200/- per month as last salary drawn by

the deceased, but the certificate issued by the Principal,

Kushaleswar Anchalika Mahavidyalaya, Rekutia, Keonjhar

indicating the last pay drawn by him was Rs.1,055/- only. A

copy of such verification report submitted by the investigator

vide letter dated 4.11.2000 of the Principal, Kushaleswar

Anchalika Mahavidyalaya, Rekutia, Keonjhar who has filed as

Annexure-3 Series to the writ petition.

4. On 24.1.2001, the Petitioner-Company after receiving

verification report filed before the Court praying therein that

since the Claimants have suppressed the material information by

producing a fake salary certificate, the compromised order may

be cancelled and the case may be placed for regular hearing. It

has also been stated in the writ petition that since the

compromise was subject to verification of salary certificate and

after verification of the salary particulars of the deceased, the

Writ Petitioner-Insurance Company was of the view that

material information has been suppressed and, accordingly, a // 4 //

petition was filed before the Court seeking withdrawal of the

compromise. However, the learned Tribunal vide order dated

19.10.2001 rejected the petition filed by the Petitioner-Insurance

Company from withdrawing the compromise and directed the

Insurance Company to pay the compensation amount as per the

final order.

5. Challenging the rejection order dated 19.10.2001 passed

by the 1st Motor Accident Claim Tribunal, Keonjhar in M.A.C.

No.290/99, the Insurance Company as Petitioner filed a writ

petition bearing O.J.C. No.2082 of 2002. On perusal of the order

No.4 dated 19.08.2011, it is revealed that the learned Single

Judge disposed of the writ petition by the following order:-

"Heard the learned counsel for the parties. Both the parties agree to settle the compensation at Rs.2,20,000/- (Rupees two lakhs and twenty thousand). The cheque be drawn in favour of the claimants and be deposited before the Registrar (Judicial) of this Court within two months from today for disbursement on proper identification failing which it shall carry interest @ 6% per annum.

The writ application is disposed of accordingly. A copy of this order be handed over to the learned counsel for the Insurance Company for compliance."

6. Being aggrieved by the order dated 19.08.2011 passed in // 5 //

O.J.C. No.2082 of 2002, the Claimants-Opposite Parties No.1 to

4 as Review Petitioners have filed the present review petition.

On perusal of record, it is seen that there is delay of 338 days in

filing the review petition. For condonation of delay in filing the

review petition, the Petitioners have also filed a Misc. Case

No.257 of 2012 for condonation of such delay. On perusal of the

records of the review petition, it is observed that vide order

dated 12.5.2014, a Single Judge Bench after considering the

factual background of the present case was inclined to issue

notice to the Opposite Parties. Thereafter, the matter was being

adjourned from time to time for filing of requisites for issuance

of notice. Despite service of notice, the Opposite Party No.2, i.e.,

the owner of the vehicle did not appear before this Court. On

perusal of the records of the writ petition, it is also seen that the

owner of the vehicle did not appear before the Single Judge

Bench that was deciding the writ petition and the writ petition

was disposed of without any representation of Opposite Party

No.2 despite valid service of notice vide order dated 19.8.2011.

Therefore, this Court is of the considered view that since notices

have been issued and delivered to the Opposite Party No.2 and // 6 //

the Opposite Party No.2 after received such notice has preferred

not to participate in the hearing of the review petition, this Court,

therefore, deems it proper to proceed with the hearing of the

review petition in the absence of the Opposite Party No.2 by

setting him ex parte.

7. So far condonation of delay is concerned, It also appears

from the record that no order has been passed on the same and

the Misc. Case No.257 of 2012 filed for condonation of delay is

still lying on the record. Therefore, this Court is of the

considered view that while taking up the review petition for final

hearing, the condonation of delay application shall also be taken

up together with the review petition for disposal.

8. Heard Sri B.N. Mohanty, learned counsel appearing for

the Petitioner and Mr. Mahitosh Sinha, learned counsel

appearing for the Opposite Party No.1-Insurance Company.

Perused the records.

Misc. Case No.257 of 2012

9. This application has been filed under Section 5 of the

Limitation Act for condonatino of delay in filing the review // 7 //

petition.

10. On perusal of the record, it appears that there is a delay of

about 338 days.

11. Learned counsel for the Petitioners submitted that at the

time of disposal of the matter in the Lok Adalat, the Petitioners

were not having the copy of the appointment order dated

21.03.1995 issued in favour of the deceased and, as such, the

relevant information regarding the salary particulars of deceased

Rabindranath Rout, who was working as a Lecturer, was not for

with them. It was also submitted by the learned counsel for the

Petitioner that in the absence of the aforesaid appointment letter

dated 21.03.1995, the Petitioner could not filed the review

petition in time. After obtaining a copy of the appointment letter

on 21.08.2002, the Petitioner has filed the review application.

12. On perusal of the limitation petition, this Court is of the

considered view that the Petitioner has failed to make out a case

for condonation of delay by providing the relevant information

that has caused delayed in preferring the review petition.

13. Mr. M. Sinha, learned counsel appearing for the Opposite // 8 //

Party No.1-Insurance Company also opposed the condonation of

delay in filing the review petition on the ground that the Review

Petitioners have failed to make out the case in the above noted

application for condonation of delay. Accordingly, Mr. Sinha

further submitted that since no ground has been made out in the

condonation of delay application, the application filed by the

Review Petitioners is devoid of merit and the same should be

dismissed in limine.

14. However, this Court on a perusal of the entire record and

further taking into consideration the fact that the poor

Claimants, who were in helpless, were completely dependent on

the lawyer for presentation of the review petition and unless the

delay is condoned and review petition is considered on merits,

the same would cause grave injustice to the Petitioners. This is

more so, when this Court observed that the matter was initially

compromised in Lok Adalat. Thereafter, the learned Single

Judge has interfered with the order passed by the Motor

Accident Claims Tribunal basing on such compromise and

reducing the amount of compensation to almost 50% was settled // 9 //

in the Lok Adalat. Therefore, in the larger interest of justice, this

Court deems it proper to condone the delay and to consider the

review petition on its own merit after hearing the learned

counsels for both the sides. Accordingly, the delay in filing the

review petition is hereby condoned.

15. Mr. B.N. Mohanty, learned counsel appearing for the

Claimants-Petitioners, at the outset, submitted that the impugned

order deserves to be interfered with by this Court on the sole

ground that there is error apparent on the face of the record.

While saying so, Mr. Mohanty had drawn the attention of this

Court to the records of the Misc. Case No.290 of 1999 and

submitted that the matter was compromised on 29.10.2000 in

the State Level Lok Adalat held at Keonjhar in presence of

Justice C.R. Pal and, accordingly, with the consent of the

parties, the said M.A.C.T. case was compromised and settled for

a sum of Rs.5,00,000/- towards full and final settlement of the

claim amount. Moreover, such settlement was subject to certain

terms and conditions. On perusal of the compromise petition

under Annexure-2 Series reveals that one such condition is that // 10 //

the settlement so arrived is subject to verification of salary

certificate of the deceased and that the said compromise has

been duly singed by the representative of the Insurance

Company as well as by the Advocate of the Insurance Company.

Accordingly, learned 1st M.A.C.T., Keonjhar vide order dated

29.10.2000 disposed of the matter by awarding a compensation

of Rs.5,00,000/- to the Claimants.

16. Mr. B.N. Mohanty, learned counsel appearing for the

Petitioners further submitted that challenging the aforesaid order

of the 1st M.A.C.T., Keonjhar disposing of the M.A.C.T. Case

by awarding a compensation of Rs.5,00,000/- vide order dated

29.10.2000, the Insurance Company filed a writ petition before

this Court. He further submitted that in view of the provisions

contained in Legal Services Authorities Act, any order passed in

the Lok Adalat is not appealable. Therefore, by invoking the

jurisdiction of this Court under Article 226/227 of the

Constitution of India, the Insurance Company had assailed the

order dated 29.10.2000 on the principal ground that the

Claimants had suppressed the information with regard to the // 11 //

salary of the deceased and, accordingly, the learned M.A.C.T.

relying upon such information has passed an erroneous award

thereby awarding a sum of Rs.5,00,000/- to the Petitioners, who

are the legal heirs of the deceased who died in the motor vehicle

accident.

17. Learned counsel appearing for the Petitioners further

referring to the letter dated 21.03.1995 under Annexure-A to the

review petition, which is a letter issued by the Principal-cum-

Secretary of Kushaleswar Anchalika Mahavidyalaya, Rekutia,

Keonjhar, submitted that the Petitioner was appointed as a

Commerce Lecturer in Kushaleswar Anchalika Mahavidyalaya,

Rekutia, Keonjhar for a period of 89 days in the approved Scale

of Pay and D.A. of the above noted College on the relevant

point of time was Rs.4,200/- per month. Accordingly, it was

submitted that the deceased was receiving a salary of Rs.4,200/-

per month in the year 1998, i.e., the year in which the deceased

died in motor accident. He further contended that the assertion

of Opposite Party No.1-Insurance Company that on inquiry, the

investigator found from the Principal of College that the last pay // 12 //

drawn by the deceased was Rs.1,055/- is absolutely baseless and

vogue. Moreover, he further submitted that such inquiry report

which was prepared behind the back of the Petitioners cannot be

used against the Petitioners at later stage when the proceeding

has already been concluded and final award has been passed

basing upon the settlement arrived at in the Lok Adalat.

Therefore, it was also contended that once the award was passed

basing on the compromise made at the State Level Lok Adalat,

the same is no more open to challenge.

18. Additionally Mr. Mohanty also contended that the

Petitioners-Claimants have never given their consent before the

learned Single Judge in O.J.C. No.2082 of 2002 and,

accordingly, he submitted that the order dated 19.08.2011

recording the concession given by the counsel appearing for the

Opposite Parties-Claimants in the writ petition is not binding on

the present Petitioners. Moreover, he also submitted that the

learned Single Judge while disposing of the matter vide order

dated 19.08.2011 has nowhere discussed about the compromise

arrived at in the State Level Lok Adalat and the order passed by // 13 //

the 1st M.A.C.T., Keonjhar pursuant to the aforesaid settlement

on 29.10.2000. He also submitted that the Writ Petitioner-

Insurance Company has failed to make out any ground in the

writ petition calling for interference by the learned Single Judge

while disposing of the writ petition and reducing the amount of

compensation to Rs.2,20,000/-.

19. Mr. M. Sinha, learned counsel appearing for the Opposite

Party No.1-Insurance Company, on the other hand, emphatically

submitted that the settlement in the State Level Lok Adalat held

at Keonjhar on 29.10.2000 was subject to verification of salary

certificate of the deceased. Therefore, the Opposite Party No.1

being engaged its investigator to conduct an inquiry and to find

out the exact salary the deceased was getting at the time of

death. He further submitted that upon inquiry from the Principal

of College in question, the investigator could come to know that

the Petitioner was drawing a sum of Rs.1,055/- as his monthly

salary at the time of his death. Therefore, after getting such

information, the Insurance Company approached this Court by

filing writ petition and challenging the settlement in the Lok // 14 //

Adalat as well as the consequential order dated 29.10.2000

passed by the 1st M.A.C.T., Keonjhar. He also submitted that at

the time of final disposal of the writ petition, the counsel

appearing for the Petitioner had agreed for settlement of the

claim amount at Rs.2,20,000/-. Accordingly, the learned Single

Judge vide order dated 19.08.2011 after recording the agreement

of both the sides with regard to the quantum of compensation,

i.e., Rs.2,20,000/- has finally disposed of the writ petition. In

such view of the matter, Mr. Sinha, learned counsel appearing

for the Opposite Party No.1-Insurance Company submitted that

the learned Single Judge while disposing of the writ petition on

19.08.2011 has not committed any illegality at all and,

accordingly, submitted that the present review petition is devoid

of merit and, as such, the same should be dismissed.

20. Having heard the learned counsels appearing for the

respective parties and upon a careful examination of the entire

record, this Court is of the view that to interfere with the order

dated 19.08.2011 in the present review petition, this Court must

be convinced about the fact that there is error apparent on the // 15 //

face of the record or there are certain material particulars which

has not been taking into consideration by the learned Single

Judge Bench while disposing of the writ petition. With regard to

scope and ambit of interference of this Court while exercising

the power of review, in a catena of judgments rendered by the

Hon'ble Supreme Court as well as this Court, the scope and

jurisdiction in interfering with the order while exercising the

power of review has been clearly delineated. Therefore, to avoid

repetition, this Court is not referring to such judgments as the

legal position in the aforesaid context is well established.

21. To succeed in the review petition, the Petitioner has to

demonstrate before this Court that their exists an error apparent

on the face of record while passing the order dated 19.8.2011.

22. This Court after considering the contentions raised by the

learned counsels of the respective parties and upon a careful

examination of the records found that the matter was initially

settled in the State Lok Level Lok Adalat. A copy of the such

settlement had already been filed under Annexure-2 Series to

the writ petition and the same clearly reveals that the matter was // 16 //

settled with the consent of the Opposite Party No.1-Insurance

Company for a sum of Rs.5,00,000/-. Further, this Court is also

of the view that in the event it was found by the investigator of

the Insurance Company that certain material information have

been suppressed or certain wrong information have been

provided deliberately to obtain a favourable award, in that case

the same should have been brought to the notice of the Court as

well as the party that is likely to suffer adversely. In the instant

case, on perusal of the writ court record, it is found that the

order dated 19.8.2011 passed by the learned Single Judge

without considering the ground on which the order dated

29.10.2000 passed by the 1st M.A.C.T., Keonjhar on the basis of

the compromise in the State Level Lok Adalat, had been pleased

to disposed of the writ petition by recording the consent of the

counsels appearing for both the sides and settled the

compensation amount at Rs.2,20,000/-. On perusal of the said

order, this Court was unable to trace out anything on record or

in the said order dated 19.8.2011 with regard to the consent of

the Claimants-Review Petitioners. On the contrary, it is seen

that the writ petition has been disposed of by recording the // 17 //

concession of the Advocates and without referring to the factual

background as well as the defect, if any, in the order passed by

the learned 1st M.A.C.T., Keonjhar on 29.10.2000.

23. On a careful analysis of the aforesaid facts as well as the

settle legal position, this Court with great respect to the learned

Single Judge is of the considered view that the learned Single

Judge should have either held that the order dated 29.10.2000 is

vitiated due to suppression of material information or while

disposing of the writ petition finally with consent of the parties

should have insisted for the consent of the Claimants, who are

the real beneficiaries, instead of recording the concession of the

counsel representing the Claimants-Petitioners in the writ

petition. Therefore, in my humble view the order dated

19.8.2011 passed by the learned Single Judge in the above noted

writ petition is hit by principle of error apparent on the face of

the record as because the parties who had settled the matter

before the learned 1st M.A.C.T., Keonjhar for a sum of

Rs.5,00,000/- could not have settled the same claim for a much

lesser amount of Rs.2,20,000/- at the High Court Level.

// 18 //

Accordingly, this Court has no hesitation for setting aside the

order dated 19.8.2011 passed by this Court in O.J.C. No.2082 of

2002.

24. However, keeping in view the fact that the matter is

pending since the year 2000, this Court deems it proper to

dispose of the review petition without remanding the same back

to the learned Single Judge Bench to adjudicate the writ petition

afresh, by directing the Opposite Party No.1-Insurance

Company to pay the awarded amount of Rs.5,00,000/- (Rupees

five lakhs) as ordered by the learned 1st M.A.C.T., Keonjhar

vide order dated 29.10.2000 and, accordingly, a total

compensation of Rs.5,00,000/- as agreed by the parties in the

State Level Lok Adalat held on 29.10.2000. Further, taking into

consideration the fact that the delay in preferring the review

petition has not been properly explained, the Opposite Party

No.1-Insurance Company shall pay interest @ 12% as awarded

by the Tribunal in its order dated 29.10.2000 upto disposal of

the writ petition on 19.08.2011. Therefore, the Opposite Party

No.1 is directed to pay a total compensation of Rs.5,00,000/-

// 19 //

(Rupees five lakhs) along with 12% interest upto 19.08.2011 to

the Claimants-Review Petitioners within a period of two months

hence, failing which, the Opposite Party No.1 shall pay interest

@ 18% till the actual payment is made to the Claimants-Review

Petitioners.

25. With the aforesaid observation and direction, this review

petition stands allowed.

( A.K. Mohapatra) Judge

DEBASIS AECH Digitally signed by DEBASIS AECH Date: 2023.05.03 19:02:16 +05'30'