RAJNIKANT N. DAVE v. LILABEN WD/o KHELDAS GHANSHYAMDAS TILVANI
1992-12-17
B.S.KAPADIA, C.V.JANI
body1992
DigiLaw.ai
B. S. KAPADIA, J. ( 1 ) THE present appeal is filed by the appellant who is the original opponent No. 2 against the order passed by the Motor Accident Claim Tribunal (Aux.) Godhra dated 31st July 1982 as modified subsequently on 11. 11. 83 as per order in review application dated 26th October 1982. The facts of the case briefly stated are as under: ( 2 ) THE original applicants are the heirs of decd. Kheldas Ghanshyamdas Tilvani who met with an accident on 17th July 1981 at about 2 p. m. near Lal Bag Tekri on account of dash given by the Tempo bearing No. GTK 5728 owned by original opponent no. 2 and insured by original no. 3 who is the respondent no. 6 herein. At the time of accident deceased was going on bicycle and at the time he met with the accident. On account of said accident he received injury and succumbed to the injuries. The dependants who were the applicants before the Tribunal made claim for compensation of Rs. 1 88 200 According to the claimants the deceased was a businessman doing retail kirana business and his monthly income was Rs. 800 00 out of which he was spending Rs. 100-00 for himself and was utilising the rest amount for the maintenance of the family. At the time of incident he was aged about 35 Years and they further claimed Rs. 5000-00 for expenses of after death ceremony and Rs. 15 0 for pain and sufferings and accordingly Rs. 1 68 0 for dependency benefit and the amount of Rs. 200-00 for damages to the bicycle. As per the above calculation they made out claim of Rs. 1 88 200 as stated above. ( 3 ) AFTER considering the relevant evidence on record the Tribunal came to the conclusion on the point of income of the deceased that his monthly income was Rs. 50040 out of which 1 amount was deducted for his own expenses and the dependency benefits of the claimants arrived at Rs. 325/- p. m. and looking to the age of the deceased multiplier of 20 was applied by the Tribunal and therefore Rs. 78 0 were found as dependency benefits and the same were awarded. Rs. 5000-00 were awarded for the loss to the estate. Rs. 200-00 for damage to the bicycle and Rs. 300-00 for funeral expenses.
325/- p. m. and looking to the age of the deceased multiplier of 20 was applied by the Tribunal and therefore Rs. 78 0 were found as dependency benefits and the same were awarded. Rs. 5000-00 were awarded for the loss to the estate. Rs. 200-00 for damage to the bicycle and Rs. 300-00 for funeral expenses. Accordingly the Tribunal in all awarded compensation of Rs. 83 500 0 with costs and interest payable by the original opponent no. 1-Driver of the motor vehicle opponent no. 2-owner of the vehicle that is the present appellant and the insurance company that is the original opponent no. 3 jointly and severally. ( 4 ) AS per order dated 26. 10. 1982 on the Review Application being Misc. Application No. 166/82 in view of the insurance policy the Tribunal fixed the liability of the insurance company at Rs. 50 0 and for the remaining amount and proportionate costs and interest the Tribunal held opponents no. 1 and 2 liable. Thus the Tribunal held the insurance company liable for Rs. 5000 plus proportionate costs and interest along with other two original opponents and for the remaining amount that is Rs. 33 500 original opponents no. 1 and 2 were held liable. Original opponents no. 1 and 2 were held responsible for the aforesaid amount jointly and severally and thereafter the Tribunal has passed an order for apportionment. ( 5 ) MR. Mohit Shah learned advocate appearing for the appellant herein that is original opponent No. 2 in the petition before the Tribunal has fairly not submitted anything on the point of total amount of compensation awarded to the claimants. He has raised only contention with regard to the limited liability of the insurance company fixed by the Tribunal in the award which is passed after the review application. Mr. Mohit Shah has contended that the Tribunal has no power to review the order which is passed on 31st July 1982. He has drawn our attention to the evidence on record at Ex. 21 and copy of policy at Ex. 36. On perusal of the policy and on comparing it with the xerox copy of the original policy which was there in the file of the learned advocate Mr. Mohit Shah which has been shown to us it becomes clear that the vehicle involved in the accident namely Tempo bearing No. 5728 was goods vehicle.
36. On perusal of the policy and on comparing it with the xerox copy of the original policy which was there in the file of the learned advocate Mr. Mohit Shah which has been shown to us it becomes clear that the vehicle involved in the accident namely Tempo bearing No. 5728 was goods vehicle. It is already shown to be the public carrier in the xerox copy of the original which Mr. Mohit Shah showed us. Similarly in the copy also there are two endorsements as under ( 6 ) IN the column of limitation as to use use only under the public carriers permit within the meaning of the Motor Vehicles Act 1939 The policy does not cover reliability trial or speed test: use while drawing trailor: use for the conveyance of the passengers for hire or reward. There is also another endorsement thereon to the effect that the described vehicle is insured for the licenced carrying capacity and that the weight of the goods carried therein shall at no time exceed the licenced capacity. These two endorsements on the copy of Ex. 31 clearly makes it clear that it was the goods vehicle and not the passenger vehicle. When that is so so far as the third party is concerned liability has been mentioned in the copy of the policy form would be such as is necessary to meet with the requirement of the Motor Vehicles Act 1939 On perusal of Section 95 (2) (A) of the Act it is clear that so far the goods vehicle is concerned it is limited to Rs. 50 0 only as the accident in question has taken place in the month of July 1981 that is prior to the amendment in the year 1982. When that is so there is no question of considering the other clauses of the section 95. Therefore it is clear that when the liability is fixed by the Tribunal at Rs. 50 0 it is correctly arrived at. Therefore we do not find any mistake or error apparent therein. ( 7 ) IT is very strenuously argued by Mr. Shah that the Tribunal has no authority to review its own order. As against that Mr.
Therefore it is clear that when the liability is fixed by the Tribunal at Rs. 50 0 it is correctly arrived at. Therefore we do not find any mistake or error apparent therein. ( 7 ) IT is very strenuously argued by Mr. Shah that the Tribunal has no authority to review its own order. As against that Mr. Dalal learned Advocate for the Insurance Company pointed out before us that every Court or the Tribunal has inherent powers to review its own orders particularly when there is a fraud or misrepresentation practised on it and/or there is miscarriage of justice being done on account of glaring error committed by the Tribunal or Court. ( 8 ) IT is true that on perusal of Section 110 (C) of the Motor Vehicles Act the Tribunal has to be treated as that Court for the purposes as mentioned therein and the appeal thereof against the award passed by the Tribunal lies to the High Court. As per the provisions of section 110 (B) sub-rule 312 clearly says that the provisions of Order 41 of the CP Code would apply to the hearing of the application. There is also a provision in that rule which says that in absence of any inconsistent provision in the rules provisions of the CP Code would apply which are applicable to the trial of the civil suit. In that view of the matter function assigned to the Tribunal is to decide the lis and to do justice between the parties by awarding just and proper compensation to the injured or dependents of the deceased- victim of the incident. It is equally true that there is no specific section conferring power of review on the Tribunal. We have been pointed out number of xxxxxx judgments on the point of review which are reported in 8 GLR 429; AIR 1959 Andhra Pradesh 321; AIR 1980 Andhra Pradesh 149 to show that every Tribunal has inherent jurisdiction and they do not become functous officio after passing of the order by it. Therefore whenever any fraud is practised on the Tribunal or any misrepresentation is made before the Tribunal the Tribunal has every right or power to correct its own error rather it becomes its duty to correct its own error in the order on account of fraud or misrepresentation practised on it to avoid miscarriage of justic.
Therefore whenever any fraud is practised on the Tribunal or any misrepresentation is made before the Tribunal the Tribunal has every right or power to correct its own error rather it becomes its duty to correct its own error in the order on account of fraud or misrepresentation practised on it to avoid miscarriage of justic. In another decision in the case of Sukhdevsinh and others vs. State of Punjab and others reported in AIR 1962 Supreme Court 1909 it was held that there is nothing in Article 226 of the Constitution of India which preclude the High Court from exercising the power or review which inhers in every court to prevent miscarriage of justice or to correct grave and palpable errors committed by it In the said case writ petition was filed by A for cancellation of an order of allotment passed by the Director of Rehabilitation in favour of B The High Court cancelled the order in favour of B though he was not a party to the writ proceedings Subsequently B filed petition under Art 226 of the Constitution of India for impleading as party and after rehearing and redeciding the matter was allowed The aforesaid judgment is delivered by the 5 Judges of the Supreme Court and the same judgment was followed by the Bench of the two Judges of the Supreme Court in the case of Mr. Sharma vs. Sharma reported in 1979 Supreme Court 1947. It was interalia clarified in that case that the powers of review may be exercised in case of some error or mistake apparent on the face of record Similarly in the case of Northern India Caterers (India Limited) vs. Lt.
Sharma vs. Sharma reported in 1979 Supreme Court 1947. It was interalia clarified in that case that the powers of review may be exercised in case of some error or mistake apparent on the face of record Similarly in the case of Northern India Caterers (India Limited) vs. Lt. Governor Delhi reported in 1964 Supreme Court 674 was also cited before us That decision pertains to the general exposition of law pertaining to the review proceedings Il was held in the said decision that the powers of review can be exercised where glaring omission or patent mistake or the like grave error has been committed in earlier decision ( 9 ) HERE it may be stated that the aforesaid judgments are not directly on the point with regard to the powers of the Tribunal However the judicial pronouncements are clear that whenever there is miscarriage or injustice found whenever there is apparent glaring omission or patent mistake or like grave error has been crept in earlier the Courts and the Tribunal have inherent powers to undo that mistake or error apparent on the face of it with a view to do justice and to prevent injustice being done to the parties The judgments as aforesaid have been considered in the case of Gujarat University vs. Miss Sonal P. Shah and Ors.
reported in XXIII (1) GLR at page 171 decided by the Full Bench of this Court on the point It has been held that the inherent powers though ex-facie plenary are not to be treated as unlimited or unabridged They are to be invoked on the grounds analogous to grounds mentioned in Order 47 Rule 1 namely that (1) discovery of new and important matter or evidence which the party seeking the review could not produce at the time when the earlier order sought to be reviewed was made despite exercise of due diligence (ii) existence of some mistake or error apparent on the face of the record; and (iii) existence of any analogous grounds It was interalia observed in the judgment that these are the very three gounds referred to in Order 47 Rule I of the CP Code and by declaration of law at the hands of the Supreme Court in the above case they are the hedges or limitations or the High Courts power In the aforesaid case the question was with regard to the delivery of the judgment after hearing of the matter under Article 226 of the Constitution of India and that order was sought to be reviewed and ultimately the Court has interalia come to the conclusion that the scope for review has its own restrictions and such powers cannot be exercised in the manner in which the power in appeal can be exercised and ultimately they summarily rejected the review application ( 10 ) IN view of the consistent view on the point of review as stated above we hereby hold that the Motor Accident Claims Tribunal has jurisdiction to entertain review application in the circumstances as aforesaid only ( 11 ) IN this case Mr. Dalal learned advocate for the Insurance Company has pointed out that the policy of insurance was on the record and the contents thereof are not disputed The liability under the policy was only as prescribed under the Motor Vehicles Act and as the vehicle involved in the accident was the goods vehicle clause (a) of sub-section (2) of section 95 of the Act applies and the liability of the Insurance Co to indemnify the insurer was limited upto Rs. 50 0 only and that point was pleaded in para 11 of the Written Statement filed before the Tribunal at Ex. 25.
50 0 only and that point was pleaded in para 11 of the Written Statement filed before the Tribunal at Ex. 25. Therefore it cannot be said that any new point was raised or the matter was argued afresh in the review application. The only palpable error or omission committed by the Tribunal earlier is that it has not properly looked to the policy of insurance which was on record. The Tribunal has overlooked the endorsements on the policy as well as the statutory provisions of law as referred to hereinabove. Thus the error or omission was on the face of record and palpable error committed by the Tribunal and therefore in our view the Tribunal had right and duty also to correct its own mistake to avoid injustice being done to the insurance company which is an instrumentality of the State. While deciding the review application the Tribunal has observed that the provisions of the policy were overlooked though the policy was on record. Therefore it is an error apparent on the face of record in view of the fact that there is no question of any argument or interpretation when the clause in the policy itself was quite specific and the relevant clause (a) sub-section (2) of section 95 of the Act is also clear on the point. Therefore the Tribunal has rightly exercised the power of review to do justice between the parties and for preventing the injustice being done to the insurance company. ( 12 ) ASSUMING that our view on the point of maintainability of review application is wrong even so the appellant cannot raise this point now once when the award is already amended as per the order on review application. No such appeal from order as per Order 43 Civil Procedure Code has been filed against the order allowing review application. No such point was raised at the time of hearing of review application.
No such appeal from order as per Order 43 Civil Procedure Code has been filed against the order allowing review application. No such point was raised at the time of hearing of review application. Now when the first appeal is filed against the said order which was modified as per the order on review application is under challenge in this appeal we have carefully examined the case on merits to consider as to whether the final order passed after the review in the aforesaid Motor Accident Claims Petition is erroneous in any manner and on merits for the aforesaid reasons we hold that there is no mistake or error committed by the Tribunal while passing the modified order as per order in the review application. ( 13 ) THEREFORE we do not see any reason whatsoever to interfere with the orders of compensation awarded by the Tribunal. Therefore the appeal fails and accordingly the appeal is dismissed. No order as to costs. Appeal Dismissed. .