Research › Search › Judgment

Karnataka High Court · body

2004 DIGILAW 612 (KAR)

SUNEETHA NAYAK v. B. G. HARSHADEVARA MATH

2004-11-03

MOHAN M.SHANTANAGOUDAR

body2004
SHANTANAGOUDAR, J. ( 1 ) THE petitioners have sought for quashing the order dated 4. 4. 2000 passed in M. V. C. No. 824 of 1988 on the file of the learned Additional civil Judge (Sr. Dn.) and M. A. C. T. , Udupi (Annexure 'a') by filing this writ petition. ( 2 ) THE records disclose that the husband of the petitioner No. 1 and father of petitioner No. 2, viz. , Sridhara Nayak, who was travelling in an autorickshaw on 17. 3. 1988 met with the accident at about 9. 20 p. m. , when a Matador van came from the opposite direction and dashed against the said autorickshaw. The said Sridhara nayak died due to the injuries sustained by him in the accident. The petitioners herein filed claim petition in M. V. C. No. 824 of 1988 before the learned Additional Civil judge (Sr. Dn.) and M. A. C. T. , Udupi. The parents of Sridhara Nayak filed M. V. C. No. 589 of 1988. During pendency of the matters, both the parents of Sridhara Nayak expired. These petitioners are the only remaining legal representatives of Sridhara nayak. Learned Claims Tribunal allowed the claim petition by its judgment dated 5. 5. 1999 and awarded global compensation of Rs. 3,08,060 to the claimants and further held that the respondent Nos. 1 and 2 herein (insured and insurer) are jointly and severally liable to pay the amount of compensation. United India Insurance Co. Ltd. (respondent No. 2 herein) filed application under Order XLVII, rule 1 read with section 151 of Civil Procedure Code before the M. A. C. T. , Udupi, praying for reviewing the award dated 5. 5. 1999 and consequently prayed for limiting its liability to rs. 50,000. The said application was allowed by the Claims Tribunal by the order dated 4. 4. 2000, which is impugned in this petition. ( 3 ) LEARNED counsel for the petitioners contended that the Claims Tribunal could not have reviewed its award, inasmuch as, the powers of review are not conferred on the Motor Accidents Claims Tribunal. In the alternate, he submitted that the circumstances stated in Order XLVII, rule 1 of civil Procedure Code are not existing and consequently, the power of review could not have been exercised by the court below. Per contra, Mr. In the alternate, he submitted that the circumstances stated in Order XLVII, rule 1 of civil Procedure Code are not existing and consequently, the power of review could not have been exercised by the court below. Per contra, Mr. B. C. Seetharamarao, the learned counsel appearing on behalf of insurance company argued in support of the order passed by the court below, inter alia, contending that the Claims Tribunal has power to review its order/award. ( 4 ) TO decide the question as to whether the Motor Accidents Claims Tribunal has got jurisdiction to review its award or not, it is relevant to note rules 253 and 254 of the Karnataka Motor Vehicles Rules, 1989, which read thus:"rule 253. Vesting powers of civil court to the Tribunal.- (1) Without prejudice to the provisions of section 169 every Claims Tribunal may exercise all or any of the powers vested in a civil court under the following provisions of the Code of Civil Procedure, 1908 in so far as they may be applicable, namely, sections 30, 32, 34, 35, 35-A, 75 (a) and (c), 76, 77, 94, 95, 132, 133, 144, 145, 147, 148, 149, 151, 152, 153 and 153-B, and subject to the provisions of the section 174. The Claims Tribunal shall have all the powers of the civil court for the purpose of the execution of award, as if the award is a decree of a civil court. (2) The Claims Tribunal may exercise all or any of the powers of civil court as may be necessary in any case for discharging its functions under the Act and Rules made thereunder. (Emphasis added) rule 254. Procedure of holding the enquiry.-The following provisions of the Code of Civil Procedure, 1908, shall, so far as may be, applied to the proceedings before every Claims tribunal, namely: (a) Sections 28, 78 and 82. (Emphasis added) rule 254. Procedure of holding the enquiry.-The following provisions of the Code of Civil Procedure, 1908, shall, so far as may be, applied to the proceedings before every Claims tribunal, namely: (a) Sections 28, 78 and 82. (b) In the First Schedule, Order V, rules 9 to 13 (both inclusive) and 15 to 30 (both inclusive); Order VI, rules 4, 5, 7, 10, 11, 16, 17 and 18; Order VII, rule 10; Order VIII, rules 2 to 5 (both inclusive), 9 and 10, Order IX; Order XI, rules 12 to 15 (both inclusive), 17 to 21 (both inclusive) and 23; Order XII, rules 1, 2, 3-A, 4, 7 and 9; Order XIII, rules 3 to 10 (both inclusive); Order XIV, rules 2 and 5; Order XVI; Order XVII; order XVIII, rules 1 to 34 (both inclusive); Order XIX, rules 10 to 12 (both inclusive) and 15 to 18 (both inclusive); order XX, rules 1 to 3 (both inclusive), 8, 11 and 20; Order XXI; Order XXII, rules 1 to 7 (both inclusive) and 9; Order xxiii, rules 1 to 3 (both inclusive); order XXIV; Order XXVI, rules 1 to 8 (both inclusive) and 15 to 18 (both inclusive); Order XXVII; Order XXVIII; order XXIX; Order XXX, rules 1, 3 to 8 (both inclusive) and 10; Order XXXII, rules 1 to 15 (both inclusive); Order xxxvii, rules 1 to 11 (both inclusive); and Order XXXIX, rules 1 and 3 to 5 (both inclusive ). Insofar as the Act and these Rules make no provision or make insufficient provision, the relevant provisions of the Code of Civil Procedure, 1908, shall so far as may be, apply to the proceedings before the Claims tribunal. " (Emphasis added) ( 5 ) THE bare reading of the aforesaid provisions makes it clear that the Claims tribunal may exercise all or any of the powers vested in a civil court as may be necessary in any case for discharging its functions under the Motor Vehicles Act and Rules made thereunder. Even if the motor Vehicles Act and the Karnataka motor Vehicles Rules make no specific provision to review, the relevant provisions of Civil Procedure Code shall apply to the proceedings before the Claims Tribunal. Even if the motor Vehicles Act and the Karnataka motor Vehicles Rules make no specific provision to review, the relevant provisions of Civil Procedure Code shall apply to the proceedings before the Claims Tribunal. It is also clear from rule 253 (1) (cited supra) that the inherent powers vested in the civil court under section 151 of Civil Procedure code may be exercised by the Claims tribunal. The aforesaid provisions make it abundantly clear that the power of review is conferred on the Claims Tribunal at least by necessary implication though not specifically provided under the Motor Vehicles act and Karnataka Motor Vehicles Rules, 1989. ( 6 ) IT is not disputed by the learned counsel for the petitioners that the liability of the insurance company is limited to rs. 50,000 in this matter, which fact is also clear from the insurance policy, Exh. D-l. The Claims Tribunal while passing the award on 5. 5. 1999, overlooked the mandatory provisions of the Act and the terms of the policy with regard to limitation of the liability. Under such circumstances, it is an appropriate case wherein the Tribunal should exercise its power to review its award for limiting the extent of liability of the insurer. Otherwise, the insurance company which is a instrumentality of the Government, dealing with public money will be put to irreparable loss and injury and manifest injustice will be resulted if the original order is allowed to stand. The hands of the Tribunal are not tied to rectify the illegality crept in the award by inadvertence or otherwise to meet the ends of justice in appropriate cases or to do away with manifest injustice that will be resulted if the award is allowed to stand in its original condition. ( 7 ) EVEN though Order XLVII, rule 1 and section 114 of Civil Procedure Code regarding right of review of its own award is not mentioned in rules 253 and 254 of the Karnataka Motor Vehicles Rules, the power of review can be exercised by the claims Tribunal unless those provisions are specifically excluded by the statute. The aforesaid Rules (cited supra) clearly indicate that the provisions of review are not specifically excluded. On the other hand, by necessary implication, they make it clear that the powers of review as contained in the Civil Procedure Code can be exercised by the Claims Tribunal. The aforesaid Rules (cited supra) clearly indicate that the provisions of review are not specifically excluded. On the other hand, by necessary implication, they make it clear that the powers of review as contained in the Civil Procedure Code can be exercised by the Claims Tribunal. The aforesaid view of mine is supported by the judgment of Division Bench of Kerala high Court in Rajan v. Sukumaran, 1997 acj 778 (Kerala), wherein it is observed thus:" (12) Even though Order 47, rule 1 of the Civil Procedure Code regarding the right of review of its own order is not mentioned in rule 21 of the M. A. C. T. Rules, it has been held by this court in various decisions that the provisions of the Civil Procedure Code should be followed by Motor Accidents Claims tribunal and other Tribunals unless those provisions are specifically excluded by the statute. The decisions in K. V. Aboo v. Commissioner for Workmen's compensation, 1977 ACJ 446 (Kerala); cheru Ouseph v. Kunjipathumma, 1981 klt 495 ; Mohammed v. Chakkappan, 1983 KLT 854 ; Abdulla v. Rent controller, 1984 KLT 865 and United India insurance Co. Ltd. v. George, 1988 ACJ ' 45 (Kerala), have laid down the above principle of law. Therefore, in view of what is stated in the preceding paras and the decisions referred to above, it is clear that the Motor Accidents Claims tribunal has got jurisdiction to review its own order and the contention raised by the appellant to the effect that the tribunal has no power to review its own order has to be rejected. " ( 8 ) HIGH Court of Judicature, Madras in the case of Nesamony Trans. Corpn. Ltd. v. John Bright, 1993 (1) MLJ 365 , while dealing with the case under similar circumstances has observed thus:" (18) We have now seen that the Apex court has categorically held that the motor Accidents Claims Tribunal is a civil court. Further, the Supreme Court as well as this court had applied the provisions of the Civil Procedure Code not expressly mentioned either in the act or in the Rules framed thereunder. Further, the Supreme Court as well as this court had applied the provisions of the Civil Procedure Code not expressly mentioned either in the act or in the Rules framed thereunder. Following that trend and as observed by a Division Bench of this court in the decision reported in S. V. R. Natarajan chettiar v. State of Madras, ILR 1960 mad 449, it should be held that the tribunal so long as it exercises judicial functions should be held to possess power to review its judgment where due cause is shown. In view of the later apex Court judgments holding that the tribunal is a civil court, I do not think that the ratio laid down by the Supreme court in P. N. Thakershi v. Pradyuman singhji, AIR 1970 SC 1273 , can be pressed into service. In the light of the foregoing, I am inclined to hold that the motor Accidents Claims Tribunal has jurisdiction to review its earlier order where due cause is shown. " ( 9 ) THE Supreme Court in the case of united India Insurance Co. Ltd. v. Rajendra Singh, 2000 ACJ 1032 (SC), while dealing with the jurisdiction of the Claims tribunal for recalling its order, observed thus:"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. It is unrealistic to expect the appellant company to resist a claim at the first instance on the basis of the fraud because appellant company had at that stage no knowledge about the fraud allegedly played by the claimants. If the insurance company comes to know of any dubious concoction having been made with the sinister object of extracting a claim for compensation, and if by that time the award was already passed, it would not be possible for the company to file a statutory appeal against the award. Not only because of the bar of limitation to file the appeal but the consideration of the appeal even if the delay could be condoned, would be limited to the issues formulated from the pleadings made till then. Not only because of the bar of limitation to file the appeal but the consideration of the appeal even if the delay could be condoned, would be limited to the issues formulated from the pleadings made till then. " ( 10 ) FROM the aforesaid judgments, it is clear that the insurance company was fully justified in approaching the Tribunal by filing an application for reviewing its earlier award in order to prevent misuse of public funds. The Tribunal cannot be regarded as powerless to recall or review its own order if it is convinced that the order was as a result of fraud or misrepresentation of such a dimension as would affect the very basis of the claim. In view of the above, in my considered view, the Motor accidents Claims Tribunal has got power to review its award. ( 11 ) LEARNED counsel for the petitioners, as aforesaid, does not dispute that the liability of the insurance company is limited to Rs. 50,000 in this matter. Under such circumstances, the original award dated 5. 5. 1999 suffers from error apparent on the face of the record. The aforesaid fact is the sufficient reason for Motor accidents Claims Tribunal to review its earlier award. In this view of the matter, the tribunal has rightly exercised its review jurisdiction for correcting its serious mistake crept in the award dated 5. 5. 1999. In view of the above, I do not find any merit in this writ petition and the same is dismissed. Petition dismissed. --- *** --- .