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2004 DIGILAW 144 (KAR)

SMT. B. v. NAGARATHNA VS SRI. BASANAGOUDA

2004-02-25

RAM MOHAN REDDY, S.R.NAYAK

body2004
S. R. NAYAK, J. ( 1 ) BOTH the Civil Revision Petitions are preferred by Oriental Insurance Company Limited against the common judgment and order dated 05th February, 2003 passed in Review Petition Nos. 55 of 2002 and 54 of 2002 on the file of the Court of the Principal Civil Judge, Senior Division, and MACT, Raichur, for short, the MACT. Hence both the Civil Revision Petitions were clubbed and heard together and they are being disposed of by this common judgment. ( 2 ) CIVIL Revision Petition No. 1217 of 2003 is directed against the judgment in Review Petition No. 55 of 2002 whereas Civil Revision Petition No. 1022 of 2003 is directed against the judgment in Review Petition No. 54 Of 2002. Both the Civil Revision Petitions are filed before this Court under Section 115 of CPC. Review Petition Nos. 54 and 55 of 2002 were preferred by the Insurance Company before the MACT under Order 457, Rule 1, CPC seeking review of the judgment and award passed in MVC No. 639 of 1998 and MVC No. 640 of 1998, allowing the claim petition of the respondent-herein filed under Section 166 of Motor Vehicles Act, 1988, for short, the Act for compensation on the ground that the awards were obtained by the claimants by playing fraud. There was delay in preferring the Review Petitions. Therefore, the Insurance Company had filed application seeking condonation of delay in preferring the Review Petitions. The respondent-claimants opposed the Review Petitions by filing Statement of Objections. The MACT by the impugned judgment and order dated 5th February, 2003, dismissed both the Review Petitions on the ground of delay as well as on merits. The Insurance Company being aggrieved by the above judgment of the MACT have preferred Civil Revision Petitions under Section 115 of CPC. ( 3 ) WE have heard Smt. Nagarathna, learned counsel for the Revision Petitioners and Sri Basavaprabhu S. Patil, learned counsel for the claimants-respondents. ( 4 ) AT the threshold of the hearing, Sri Basvaprabhu S. Patil, learned counsel for the claimants would contend that these CRPs are not maintainable in the light of the judgment of Five-Judge Bench pf this Court in UNION OF INDIA, REP. BY ITS SECRETARY V. M/s MYSORE PAPER MILLS LTD. ( 4 ) AT the threshold of the hearing, Sri Basvaprabhu S. Patil, learned counsel for the claimants would contend that these CRPs are not maintainable in the light of the judgment of Five-Judge Bench pf this Court in UNION OF INDIA, REP. BY ITS SECRETARY V. M/s MYSORE PAPER MILLS LTD. , BHADRAVATHI (ILR 2003 KAR 4155) whereas, Smt Nagarathna, learned counsel for the revision petitioners would maintain that CRPs are maintainable in the light of the judgment of Three-Judge Bench of the Supreme Court in NATIONAL INSURANCE CO. LTD. CHANDIGARH V. NICOLETTA ROHTAGI AND OTHERS ( (2002)7 SCC 456 ). Therefore, it becomes necessary for us to decide the question of maintainability at the threshold. Therefore, we heard learned counsel for the parties on maintainability of Civil Revision Petitions. ( 5 ) SMT. Nagarathna, drawing our attention to what the Apex Court in paragraph-31 has observed in NICOLETTA ROHTAGIs case (supra2), would contend that since the impugned award obtained by the claimants is vitiated on account of fraud, the revision petitions filed by the Insurance Company against the order of the MACT passed in Review Petitions are maintainable. Elaborating the contention, Smt. Nagarathna would contend that since the procedure envisaged under the CPC is applicable for adjudicating the rights of the parties under the Motor Vehicles Act, 1988, the legal remedies provided to the parties under the CPC should be extended to aggrieved parties in working out their rights under the Motor Vehicles Act also. ( 6 ) SMIT. Nagarathna would submit that under Order 47, Rule 7, CPC an appeal is provided against an order granting review, but no appeal is provided against an order of the Court rejecting the Review Application and since the Review Petitions filed by the Insurance Company are rejected by the MACT, the Insurance Company cannot prefer appeals against the rejection order and the only remedy available to it is to approach this Court by way of revision under Section 115 of CPC. Sri Basavaprabhu S. Patil, per contra, would contend that the observation of the Apex Court in paragraph 31 in NICOLETTA ROHTAGIs case (supra2) could be considered to be an authority only to say the if an order made by a quasi judicial Forum or Court is vitiated an account of fraud, the aggrieved party can approach such judicial forum or the Court, as the case may be, and seek review of such order, but the observations in paragraph 31 of the judgment cannot be construed in such a way as to hold that even against the order of the MACT rejecting the Review petitions filed by the Insurance Company further remedy could be availed by the Insurance Company further remedy could be available by the Insurance Company by way of revision under Section 115 of CPC. ( 7 ) HAVING heard the learned counsel for the parties, the contention put forth by Smt. Nagarathna is not acceptable to us for more than one reason. It is true that it is well settled principle of law that if an order or decree is obtained by fraud from a Court or Tribunal, the party aggrieved by such order or decree has inherent right to approach the same Court or Tribunal and seek review of such order or the decree, as the case may be. In the instant case, the Insurance Company filled Review Petition Nos. 20 of 2001 and 19 of 2001, subsequently renumbered as 55 of 2002 and 54 of 2002 contending that the impugned award was obtained by the claimants by playing fraud. At this stage itself, it needs to be noticed that Review Petitions are opposed by the claimants by contending that they are not maintainable. But, the learned Presiding Officer of the MACT has rejected that contention of the claimants and held that the Review Petitions are maintainable. At this stage itself, it needs to be noticed that Review Petitions are opposed by the claimants by contending that they are not maintainable. But, the learned Presiding Officer of the MACT has rejected that contention of the claimants and held that the Review Petitions are maintainable. ( 8 ) IN the case of NICOLETTA ROHTAGIAs (supra2) on behalf of the appellant-Insurance Company, it was contended that if there is a collusion between the claimants and the insured or the insured does not contest the claim and the Tribunal does not imp lead the Insurance Company to contest the claim on grounds available to the insured or the persons against whom claim has been made, or in such a situation when the insurer files an application for permission to contest the claim on merit and the same is rejected or where the claimant has obtained an award by playing fraud, in such case the insurer has a right of appeal to contest the award on merits and the appeal would be maintainable. In dealing with the above contention, the Apex Court in paragraph 31 observed thus: 31. We have already held that unless the conditions precedent specified in Section 170 of the 1988 Act are satisfied, an insurance company has no right of appeal to challenge the award on merits. However, in a situation where there is a collusion between the claimants and the insured or the insured does not contest the claim an, further, the Tribunal Does not implead the insurance company to contest the claim, in such cases it is open to an insurer to seek permission of the Tribunal to contest the claim on the ground available to the insured or to a person against whom a claim has been made. If permission is granted and the insurer is allowed to contest the claim on merits, in that case it is open to the insurer to file an appeal against an award on merits, if aggrieved. In any case where an application for permission is erroneously rejected the insurer can challenge only that part of the order while filing appeal on grounds specified in sub-section (2) of Section 149 of the 1988 Act. But such application for permission has to be bona fide and filed at the stage when the insured is required to lead his evidence. But such application for permission has to be bona fide and filed at the stage when the insured is required to lead his evidence. So far as obtaining compensation by fraud by the claimant is concerned, it is no longer res integra that fraud vitiates the entire proceeding and in such cases it is open to an insurer to apply to the Tribunals for rectification of award. ( 9 ) IN paragraph-31 or anywhere else in the judgment in NICOLETTA ROHTAGIs case (supra2) the Supreme Court has not spell out kinds or nature of legal remedies an aggrieved person can avail in the event of his opponent obtaining a decree or award by playing fraud except stating that in such event, it is permissible for the aggrieved party to approach the same Court or Tribunal which has passed such award or decree. That remedy was already availed of by the Insurance Company by filling Review Petitions under Order 47, Rule 1, CPC before the MACT. Therefore, the judgment of the Supreme Court in NICOLETTA ROHTAGIs case (supra2) is no way helpful to the Insurance Company to contend that the Civil Revision Petitions filed under Section 115 CPC are maintainable. On the other hand, the precise question whether the Civil Revision Petition lies under Section 115 CPC to this Court against the judgment and awards or orders made under various statues including the Motor Vehicle Act, 1988 fell for decision-making before this Court. A Five-Judge Bench of this Court having dealt with that question and considered number of judgments having bearing on the point in M/s. MYSORE PAPER MILLS LTD. , BHADRAVATHIs case (supra1) concluded that the MACT cannot be regarded as a Court for the purpose of Section 115 CPC and having so opined, the Large Bench held that Civil Revision petitions are not maintainable under Section 115 CPC in this Court against the orders and awards passed by the MACT. ( 10 ) IN M/s MYSORE PAPER MILLS LTD. , BHADRAVATHIs case (supra1), the following question was referred to the Larger Bench of Five Judges: :are Tribunals established under the Motor Vehicles Act, the Karnataka Private Education (Discipline and Control) Act, 1975 now the Karnataka Education Act, 1983 and the Railways Claims Tribunal Act, Courts subordinate to the High Court for purpose of Section 115 of the Code of Civil Procedure? ( 11 ) IN paragraph-40 of the judgment, the Larger Bench answered the above question by holding thus: that Motor Accident Claims Tribunal (MACT) established under the Motor Vehicle Act, the Education Appellate Tribunal (EAT) established under KPEI (Dandc) Act, 1975 now the Karnataka Education Act, 1983 and Railway Claims Tribunal (RCT) established under Railway Claims Tribunal Act, 1987 are not Courts subordinate to High Court for the purpose of Section 115 CPC. Accordingly we answer the referred question in negative and hold that no revision is maintainable. ( 12 ) IT is trite that we are bound by the law declared by the Larger Bench. Be that as it may, it is not the contention of Smt. Nagarathna that the opinion of the Larger Bench of this Court in M/s MYSORE PAPER MILLS LTD. , BHADRAVATHIs case (supra1) is contrary to the judgment of the Apex Court in NICOLETTE ROHTAGIs case (supra2) or any other judgment of the Apex Court. No decision of the Supreme Court was brought to our notice which is contrary to the opinion handed down by the Larger Bench of this Court in the case of M/s MYSORE PAPER MILLS LTD. , BHADRAVATHI (supra1) ( 13 ) IN conclusion, we should state that the Civil Revision Petitions now filed are not maintainable and accordingly they are dismissed as not maintainable. However, we make it clear that this order shall not come in the way of the Insurance Company availing of any other legal remedies open to them, if any, in accordance with law. --- *** --- .