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2005 DIGILAW 705 (KAR)

PARASHRAM MAHADEV DIVATE v. DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD.

2005-10-21

K.SREEDHAR RAO

body2005
K. SREEDHAR RAO, J. ( 1 ) PETITIONER in m. V. C. No. 935 of 1990 is awarded compensation by Tribunal. It further directed by the Tribunal that the owner and insurer are liable to pay the compensation. ( 2 ) THE petitioner was a passenger in the goods Tempo. An application under section 140 of the Motor Vehicles Act was filed seeking interim compensation. The tribunal directed payment of interim compensation to the petitioner by the insurer of Tempo. ( 3 ) THIS court in M. F. A. No. 1670 of 1997 against the award of compensation observed that as per the petition averments, the petitioner was travelling in Tempo after attending a marriage and hence, he was an unauthorised passenger, and held that the insurer is not liable to pay compensation under section 147 of Motor Vehicles Act for the injuries sustained by the unauthorised passenger in view of the ruling of this court in Mallawwa v. Oriental Insurance co. Ltd. , ILR 1999 Karnataka 1363. ( 4 ) AFTER recording the evidence, the tribunal passed an award directing the owner and insurer to pay the compensation. It appears that the order of this court in M. F. A. No. 1670 of 1997 was not brought to the notice of the Tribunal, at the time of passing the final order. ( 5 ) A petition was made to the Tribunal for review on the ground that in view of the order passed in M. F. A. No. 1670 of 1997, the award made against the insurer is bad in law and the same is to be recalled. The Tribunal allowed the review petition and dismissed the claim petition against the insurer. The petitioner is in appeal on the ground that the review petition is not maintainable and the order of dismissal of the claim against the insurer in review is without jurisdiction. ( 6 ) MADRAS High Court in Anantharaju shetty v. Appu Hegade, AIR 1919 Madras 244, has held that the District Judge as the tribunal under the Religious Endowments act has no power of review of his own decision passed under section 10 of the religious Endowments Act. In that view, the argument that the review petition filed by the insurer is bad in law and the entire further proceedings are void ab initio. In that view, the argument that the review petition filed by the insurer is bad in law and the entire further proceedings are void ab initio. ( 7 ) THE denial of the power of review to the judicial authority in the absence of specific investment under statute is for a sound reason that the court when once passes the order it becomes functus officio and has no jurisdiction to review the order. The civil courts, however, under section 114 of Civil Procedure Code have the power of review. The Motor Vehicles Act and Rules do not confer the powers of review on the Motor Accidents Claims tribunal. ( 8 ) COUNSEL for the respondents relied on the ruling of the Supreme Court in [sic indian Bank v. Satyam Fibres (India) Pvt. Ltd. , 1996 CCJ 1272 (SC), which was referred by the Apex Court in] United India insurance Co. Ltd. v. Rajendra Singh, 2000 ACJ 1032 (SC ). In para 15, it is held thus: " (15) Since fraud affects the solemnity, regularity and orderliness of the proceedings of the court and also amounts to an abuse of the process of court, the courts have been held to have inherent power to set aside an order obtained by fraud practised upon that court. Similarly, where the court is misled by a party or the court itself commits a mistake which prejudices a party, the court has the inherent power to recall its order. " ( 9 ) THE facts of the case squarely falls within the third exception, namely, 'the court itself does a mistake'. It is explicit that this court while disposing of M. F. A. No. 1670 of 1997 has categorically on the basis of the facts pleaded in the petition come to the conclusion that the petitioner was an unauthorised passenger and hence, the insurer does not incur any liability. The contention that the petitioner has let in evidence to show that he was travelling along with the goods is untenable and any evidence dehors pleading is inadmissible. This court had held that the insurer is not liable to pay the compensation. The said finding has become conclusive, therefore, the question of reconsidering the liability of insurer again at the time of final disposal will not arise. This court had held that the insurer is not liable to pay the compensation. The said finding has become conclusive, therefore, the question of reconsidering the liability of insurer again at the time of final disposal will not arise. Tribunal had missed to take note of the earlier order passed by this court in M. F. A. No. 1670 of 1997, thus erroneously passed the order fastening liability on the insurer. In view of the ruling of the Supreme Court in Rajendra singh's case, 2000 ACJ 1032 (SC), the tribunal/court has inherent jurisdiction to recall its own order when obviously made under a mistake. Hence, the second order passed by Tribunal dismissing the claim against the insurer is sound and proper. ( 10 ) ACCORDINGLY, appeal is dismissed. Appeal dismissed.