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2004 DIGILAW 1257 (PAT)

Shashi Bhushan Singh v. Hari Devi

2004-12-16

body2004
ORDER 1. Heard learned counsel for the petitioner as well as learned counsel for the opposite party no. 7 and also learned counsel for the opposite parties no. 1 to 4. 2. This matter arises out of Motor Accident Claims Tribunal Case No. 25 of 1997 in which opposite party 1st set were the claimants being the heirs of the deceased, whereas the revision-Petitioner was the owner of the vehicle, opposite party 3rd set was the Driver of the vehicle and opposite party no. 7 was the Insurance Company. The said case was filed under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act') for the sake of brevity) on the ground that one Taj Narayan Mahton died on 17.12.1996 in Motor accident by Maxi-taxi Model Tata 407 bearing Registration No. BR-9A/4214 and claimed compensation of rupees three lacs. The said claim case was allowed and the Award dated 22.3.2002 was prepared by the learned Additional District Judge III cum-M.A.C.T., Begusarai, by which an order for payment of compensation of Rs. 1,50,000/- together with interest at the rate of 9% per annum from the date of application till the date of Award and future interest at the rate of 8.5% per annum till payment to the claimants was passed. However, the Insurance Company was held to be liable to pay the compensation to the claimants but it was held to be entitled to recover the said paid amount from the insured, namely the owner-petitioner (opposite party No.1 in the court below), who according to the said order had not been able to prove that the vehicle was being driven by a Driver having proper and valid driving licence at the time of accident. 3. Thereafter the said owner filed a petition under Section 151 of the C.P.C. on 16.8.2002 for modification of the said Award and for recalling that part of the order by which the Insurance Company was held to be entitled to recover the amount from the owner. This petition has been rejected vide impugned order dated 23.12.2002 passed in the aforesaid claim Case No. 25 of 1997, by which the learned Additional District Judge III-cum-M.A.C.T., Begusarai has held that the owner was not justified in filing the petition for recall or modify the Award and the only remedy which was left for him was to file an appeal against the Award. 4. 4. Learned counsel for the petitioner-vehemently challenges the said impugned order stating that the Award was passed only on the contention of the Insurance Company that the Driver had no licence to drive passenger service vehicle and had only a licence to drive light motor vehicle, medium motor vehicle and heavy motor vehicle (L.M.V. M.M.V. & H.M.V.). Learned counsel for the petitioner further contended that it was the duty of the Insurance Company to verify the fact and bring the real position before the learned court below as, it was seeking exemption under the provision of Section 149(2)(a)(i) of the Act. He further claimed that the owner's lawyer appeared and filed written statement but did not contest the case although the owner had given him full instruction in this regard but for the reasons best known to the said counsel no fact was placed before the learned court below and not even Passenger Service Vehicle Licence, which was already granted by the District Transport Officer to the Driver was placed for consideration of the learned court below. In the aforesaid circumstances, he claimed that there was clearly a fraud and misrepresentation played by the Insurance Company not only upon the owner but also upon the court and it was incumbent upon the learned court below to recall/modify the said Award and pass an appropriate order in that regard after considering all the materials and facts. In support of his said contention the learned counsel for the petitioner relies upon a decision of the Apex Court in the case of United India Insurance Co. Ltd. Vs. Rajendra Singh and others reported in AIR 2000 Supreme Court 1165 in which it was held that".....Not only because of bar of limitation to file the appeal but the consideration of the appeal even if the delay could be cordoned, would be limited to the issues formulated from the pleadings made till then." It was further held in that decision that" ..... 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 claim." Hence the learned counsel for the petitioner claims that since he had made no pleading earlier with respect to the said passenger service vehicle and the fraud and misrepresentation was played by the Insurance Company upon the court, the only remedy for the owner was to file a petition for modification of a portion of the Award in question and the learned court below was not justified in rejecting the petition. 5. Learned counsel for the claimants says that he has already received the awarded amount and he has no concern about the person who has to pay the same and hence he has nothing to say, specially when the amount of Award and merit of his case, upheld by the court below, have never been challenged. 6. However, learned counsel for the Insurance Company (opposite party no. 7) opposes the said contentions of the learned counsel for the petitioner and submits that no fraud or misrepresentation has even been committed by the Insurance Company, rather it was the claimant himself who produced the certificate regarding driving licence of the Driver for L.M.V.. M.M.V. and H.M.V. and he never filed any licence with respect to the passenger service vehicle and in that regard the Award prepared was quite legal and justified and there was occasion for modification of the same. He further contended that the civil revision was not the proper remedy and the petitioner should have moved in appeal as has been decided by the courts of law in various decisions with respect to the issues involved in the case. Learned counsel for opposite party no. 7 relies upon A.I.R.1964 Supreme Court 497, (1988) 1 Supreme Court Cases 626, 1994 (1) PLJR 79 and 1996 (2) PLJR 566 . 7. It is thus clear that the claim of the claimants and the compensation etc. allowed by the court below is admitted and has not been challenged and the only question involved in this case is that who should pay the amount of compensation etc. allowed by the court below. 7. It is thus clear that the claim of the claimants and the compensation etc. allowed by the court below is admitted and has not been challenged and the only question involved in this case is that who should pay the amount of compensation etc. allowed by the court below. Hence the claimants (opposite party 1st set), having already received the awarded amount, have got nothing to say and the contest is between the Insurance Company (opposite party no. 7) and the owner (petitioner). 8. After hearing the learned counsel for the parties and after perusing the materials on record, it is quite apparent that no case of fraud or misrepresentation against the Insurance Company is made out because if the Driver had any licence for driving a passenger service vehicle (P.SV) at the time when the accident took place it was for the owner or the Driver to produce the same, but instead they produced in the court below a certificate from the District Transport Officer showing that the Driver had a licence for driving only L.M.V., M.M.V. and H.M.V. (not P.S.V.) and hence the case was decided on that basis. In the said Circumstances, the Insurance Company cannot be legally held to have misrepresented or played fraud either upon the owner or upon the court as they had no independent knowledge about the licences and had relied upon the licence produced by the owner and/or the Driver. 9. However, so far the question of seeking exemption under Section 149(2)(a)(i) of the Act and the alleged failure of the Insurance Company to verify the fact and bring the real position on record of the case is concerned, the same cannot legally be the basis of recall or modification of the order in question as the owner and Driver themselves failed to produce the licence which, even according to the petitioner, was in their possession during the pendency of the case. 10. 10. Moreover, since an appeal against the Award is provided under Section 173 of the Act, the petitioner can legally raise the issue mentioned in the preceding paragraph and place all the materials in the appeal by way of additional evidence as the genuineness and validity or otherwise of the licence of the Driver for driving a passenger service vehicle at the time when the accident took place cannot be ignored by a court of law in such a matter and has to be considered in accordance with law. 11. In the aforesaid circumstances, the petition for modification/recall of the Award was rightly rejected by the learned court below, which has specifically held that the petitioner should have filed an appeal in accordance with law. Therefore, this civil revision is dismissed with a liberty to the petitioner to file an appeal under Section 173 of the Act alongwith a petition for condoning the delay. At this stage learned counsel for the petitioner submits that a certificate case has already been filed and its proceeding be stayed till the final disposal of the appeal. In my view, this prayer cannot be allowed at this stage. However, he may file such a petition in appeal.