Court No.2
HIGH COURT OF SIKKIM
Record of Proceedings
I.A. No.03 of 2022
arising out of
MAC App. No.02 of 2020
BRANCH MANAGER, HDFC ERGO PETITIONER
GENERAL INSURANCE COMPANY LIMITED
VERSUS
NARAPATI SHARMA (DHAKAL) & ORS. RESPONDENTS
Date: 16.03.2022
CORAM:
THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
For Petitioner Mr. Sudesh Joshi, Advocate.
ORDER
1. Heard Learned Counsel for the Petitioner.
2. Learned Counsel while making his submissions before this
Court seeking restitution of the Appeal which was permitted to be
withdrawn, vide Order of this Court dated 25.06.2021, contended that
the earlier Learned Counsel of the Appellant who withdrew the matter
made an erroneous submission by seeking withdrawal of the matter.
That, the error be condoned by this Court and the Appeal heard on
merits for the ends of justice. That, in Jet Ply Wood (P) Ltd. and Another
vs. Madhukar Nowlakha and Others: (2006) 3 SCC 699 the Hon'ble Supreme
Court has observed that the Court has discretionary powers under
Section 151 of the CPC, 1908 to remedy such errors. That, this may be
considered and the Petition allowed.
3. I have given due consideration to the submissions put forth
and perused the averments in the I.A. as also the Order of the Hon'ble
Supreme Court dated 06.12.2021 in SLP(C) No(s).19732/2021: HDFC Ergo
General Insurance Company Limited vs. Narapati Sharma (Dhakal) & Ors.
4. Pertinently it may be recapitulated here that the
Appellant/Petitioner herein had filed an Appeal, being MAC Appeal No.02
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of 2020 against the Judgment and Award of the Motor Accidents Claims
Tribunal, East Sikkim at Gangtok in MACT Case No.67 of 2017, dated
31.08.2019. By the assailed Judgment and Award, the
Appellant/Insurer had been directed to pay compensation amounting to
Rs.30,18,909/- (Rupees thirty lakhs, eighteen thousand, nine hundred
and nine) only, along with interest @ 9% per annum from the date of
filing of the Claim Petition i.e. 01.09.2017 till full and final realization.
Aggrieved thereof, the Appellant was before this Court. On 25.06.2021,
Learned Counsel for the Appellant submitted before this Court that the
points raised in the Appeal had already been considered and determined
by this Court in The Branch Manager, National Insurance Company Limited,
Gangtok vs. Master Suraj Subba and Another: AIR 2014 Sik 7 and in The
Branch Manager, United Insurance Co. Ltd. vs. Lily Ongmu Lepcha: 2017 ACJ
2224. It was further submitted that the said Judgments remained
unassailed and thereby attained finality, in view of the said
circumstance, he may be permitted to withdraw the said Appeal, which
was thus allowed by this Court.
5. Despite voluntarily seeking to withdraw the Appeal supra,
the Appellants were before the Hon'ble Supreme Court in a Special
Leave Petition assailing the Order dated 25.06.2021. The Hon'ble
Supreme Court upon hearing Counsel for the Petitioner observed as
follows;
"We feel that this Special Leave Petition is a gross abuse of the process of Court, the impugned order having noticed that the counsel for the petitioner sought to withdraw the appeal. The petitioner is an insurance company and is fully legally advised.
At this stage, learned senior counsel states that he has instructions to withdraw the Special Leave Petition with liberty to file a review.
It is for the petitioner to file an appropriate application before the High Court on the basis of the alleged averments in the petition and for that Court to consider and certainly not to come back to this Court on that ground.
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The Special Leave Petition is dismissed as withdrawn in terms aforesaid but we consider appropriate to burden the petitioner with costs of Rs.10,000/- (Ten thousand rupees only) for this misadventure, to be deposited with the Supreme Court Employees Welfare Association within four weeks.
Pending applications stand disposed of."
6. While bearing in mind the submissions of Learned Counsel
for the Petitioner before this Court that this matter be heard on merits,
it is apposite to notice that when the matter was withdrawn by Counsel
for the Petitioner pursuant to which Order dated 25.06.2021 was issued
by this Court permitting such withdrawal, it was not the case of Learned
Counsel for the Petitioner that the Court had deprived them an
opportunity of being heard. It is also relevant to note the submissions of
the then Learned Counsel for the Petitioner made earlier, that both Lily
Ongmu Lepcha and Master Suraj Subba (supra) were unassailed. In fact,
both Judgments were tested before the Hon'ble Supreme Court, which,
upon hearing Counsel for the parties, had dismissed both Appeals.
7. Considering the facts and circumstances of the instant
matter, I find no reason whatsoever to allow restitution of the Appeal
and decline to exercise the discretion vested on me under Section 151
of the CPC, 1908.
8. I.A. No.03 of 2022 stands dismissed and disposed of
accordingly.
Judge 16.03.2022
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